This follows Lobatse High Court judge, Justice Jennifer Dube's recent summary judgment against Justice Moesi and his company cancelling a loan agreement with CEDA. The parties entered into the agreement in 2011. Justice Dube ordered that the Moesi and his company should pay CEDA the sum of P3,954,488.41 plus interest charged at the rate of 7.5 percent per annum.
The judge also declared immovable and movable property belonging to Justice Moesi be executable.
“It is hereby declared that the rights, title and interest of Moesi and Bovine ID in Lease Area No. 101-MO Sandveld Bamangwato Tribal territory be and hereby are specially executable. It is hereby declared that all the hypothecated properties, Livestock branded 4 D 7 under deed of hypothecation be and hereby specially executable,” ruled Dube. The summary judgment comes after an action by CEDA in which Moesi and his company were said to have entered into a written loan agreement with the development financial institution and had allegedly failed to honour the loan agreement.
Justice Dube explained that Moesi and his company did not dispute the claims, but sought to offer excuses for nonpayment. “The defendants have acknowledged the debt through various correspondences and I am of the view that they entered appearance to defend solely to delay the matter and to frustrate plaintiff with a clear claim,” she said.
Justice Dube pointed out that a letter dated June 3, 2019 from Moesi and Bovine ID’s former attorneys to CEDA, served as evidence of their acknowledgement of the debt and consent to the amount owed. The judge said the defendants’ papers did not set out material facts on which defences on a case can at least be sustained and that they have failed to assert any satisfactory defensive grounds. “They simply raise spurious excuses and fail to provide a clear case defence to CEDA’s claim. More so, their defence considering their own admissions, demonstrate a lack of forthrightness and honesty.” In the end, the judge stated that CEDA has established an unanswerable case against Moesi and she also dismissed the application for extension of time to file request for further particulars out of time that Moesi sought.
Furthermore, she dismissed Moesi’s condonation to file out of time with costs before making orders that he pay what he owed CEDA. By way of background, CEDA and Bovine ID reportedly entered into a written loan agreement on or about June 29, 2011, pursuant to which the company was granted a loan and advanced the sum of P3, 520, 200.00 at its special instance and request. According to court papers, the loan, which had a three- year repayment grace period, was to be repaid at an annual installment of P501, 424.80 over a three period of 10 years. “CEDA would charge an annual interest of 7.5 percent on the amount lent and advanced. Should Bovine ID fail to remit any installment in a punctual manner or not at all, the total amount owed, inclusive of accrued interest, shall become immediately owing and payable,” reads court documents.
With regards to the loan, Bovine ID allegedly passed a P4, 000,000.00 First Covering Mortgage Bond in favour of CEDA over Farm 101, MO in the Sandveld area, Bamangwato Tribal Territory as collateral for the loan. Moreover, Bovine ID registered a Deed of Hypothecation (Hypothecation means offering an asset as collateral, or as backing for a loan) in favour of CEDA over all livestock with a combined value of P1, 700,000.00. The court papers revealed that Moesi executed a personal guarantee in favour of CEDA in the sum of P3,520,200.00 binding himself as surety in solidium (entirely) for and co-principal debtor with Bovine ID for the due payment by Bovine ID of all monies which may from time to time become owing to CEDA.
It stated that in breach of the loan and surety guarantee, Bovine ID and Moesi failed to repay the loan in accordance with the terms of the loan agreement. Consequently, on November 30, 2021 CEDA instituted legal proceedings against Bovine ID and Moesi for: *Cancellation of the loan agreement entered by and between the plaintiff and first defendant on June 29, 2011. *Payment of the sum of P3, 954,488.4. *Interest charged at the rate of 7.5 percent per annum. *An order declaring the rights, title and interest of the first and defendants in Lease Area No. 101-MO to be specially executable * An order declaring all the hypothecated properties, Livestock branded 4 D 7 under deed of hypothecation FT HA 135/2011 to be specially executable; Costs of suit on attorney and own client scale. *Further and / or alternative relief.
The papers revealed that Moesi and the company filed a memorandum of appearance to defend on 2022, in which they raised several potential defences. The defences consisted of contentions that the issue at hand was res judicata that the parties had reached a compromise, that CEDA violated clause 14 of the loan agreement by neglecting to provide training and mentorship for the defendants. Lastly, they stated that CEDA erroneously calculated the amount owed by adding interest during the moratorium period. Subsequently, on March 18, 2022 CEDA filed its declaration along with an affidavit and an application for summary judgment pursuant to rules of the High Court, which in compliance with the requirements rules of High Court the application for summary judgment was supported by an affidavit of facts deposed by Cynthia Sebonego, the Company Secretary and Director of Legal Services at CEDA.
According to court documents, Moesi and Bovine ID, in opposition to the application for summary judgment, on April 7, 2022 filed an affidavit resisting summary judgment which was deposed to by judge Moesi. In the judgment, the defendants apparently expanded substantially upon the same arguments that were outlined in their memorandum of appearance to defend and additionally, annexed a series of documents and communications to the affidavit, most of which were intended to illustrate their endeavours to amicably resolve their debt to CEDA.
However, it was revealed that they failed to deliver their plea by the expiry of the date which was April 7, 2022 and on May 17, 2022 they filed an interlocutory application seeking the following relief. *To be granted extension of time prescribed for filing their answer to plaintiff's declaration (more specifically their request for further particulars) outside the time prescribed, or alternatively condonation of the late filing of their request for further particulars. CEDA reportedly opposed the interlocutory application on June 3, 2022 and both Moesi and Bovine ID’s condonation application and CEDA’s summary judgment were simultaneously argued on October 12, 2022.
