Source:

Botswana Law Reports (1964 to date)/CHRONOLOGICAL LISTING OF CASES 1964 ­ 2019 Volume 3/2001 (1)/Cases Reported/KEGASITSWE v. DIKGOMO 2001 (1)
BLR 272 (HC)

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/frbo/2/4123/4129/4166?f=templates$fn=default.htm

KEGASITSWE v. DIKGOMO 2001 (1) BLR 272 (HC)

Citation 2001 (1) BLR 272 (HC)

Court High Court, Lobatse

Judge Lisimba

Judgment February 2, 2001

Counsel Matlho for the appellant.

Kgoadi for the respondent.

Annotations None

Flynote

Practice and procedure ­ Judgment ­ Interlocutory judgment ­ Rescission ­ Application to set aside interlocutory judgment ­ Conditions for setting
aside interlocutory judgment ­ Reasonable explanation for failure to enter appearance ­ Failure not made recklessly or intentionally in disregard to
rules of court ­ Grounds for application to set aside C interlocutory judgment ­ Whether proper to rescind judgment.

Headnote

The applicant and the respondent had had a love affair out of which a child was born. On 22 July 1999, sometime after the love affair had
ended, the applicant was served with a writ of summons issued by the respondent. The respondent was suing the applicant for maintenance of
the child as well as for payment of D damages for breach of promise to marry. At the time the summons was served on him, the applicant was
due to leave for Japan on a study leave for about four years. He brought this fact to the attention of the counsel for the respondent. When the
applicant returned from Japan, he was served with an interlocutory order granted against the applicant for failure to enter an appearance to
defend. The applicant applied to have the court rescind the E interlocutory judgment. He contended that his failure to enter an appearance to
defend was not due to a reckless and wilful disregard of the rules of court in that he had relied on the respondent's counsel's undertaking that
the matter would be kept in abeyance, while he was out of the jurisdiction. The applicant further deposed that he had tried, before leaving, to
instruct his attorneys to enter an appearance to defend, but had been unable to do so as their offices had been closed for the Christmas
vacation. He further contended that even though he conceded F the fact that he was liable for the maintenance of the child, he had a bona
fide defence against the rest of the respondent's claims against him. Counsel for the respondent contended that he did not at any time, give
any undertaking to hold the matter in abeyance pending the return of the applicant and since the applicant was conversant with the language
of the court, he knew what the summons required him to do and could have entered an appearance to defend within the stipulated time. G

Held: the applicant's explanation that he had approached counsel for the respondent before he left for Japan and that he thought the matter
had been kept in abeyance sounded reasonable. Further, his immediate attempts on his return, to seek legal advice from his attorneys showed
that he was genuinely interested in taking appropriate steps in the matter, therefore, his explanation for failure to enter an appearance was
reasonable and showed no recklessness or intentional disregard of the rules. H

Case Information

Cases referred to:

(1) Elma Building (Pty) Ltd v. D.I.S. Construction (Pty) Ltd and Others, High Court (CC274 of 1992), unreported.

(2) British Auto Botswana (Pty) Ltd v. Alpina Building Methods (Pty) Ltd [1987] B.L.R. 451.

2001 (1) BLR p273

(3) Grant v. Plumbers (Pty) Ltd 1949 (2) S.A. 470 (O). A

(4) Promedia Drukkers and Uitgewers (Edms) Bpk v. Kaimowitz and Others 1996 (4) S.A. 411 (C).

APPLICATION to have a default judgment rescinded. The facts are fully set out in the judgment. B

Matlho for the appellant.

Kgoadi for the respondent.

Judgment

Lisimba J. This is an application for rescission of an interlocutory judgment granted by the Registrar against the applicant in default of
appearance. The record shows that on 30 June 1999 the respondent took out a writ of C summons which together with the declaration thereof
was served on the applicant on 22 July 1999. As there was no appearance the respondent obtained an interlocutory judgment against the
applicant on 23 August 1999. The present application was filed on 18 January 2000 and is opposed by the respondent.

In his founding affidavit the applicant avers that he received the writ of summons on 22 July 1999. He was at the D time preparing to leave for
Japan and as he did not have sufficient time to attend to the allegations in the declaration he called on the plaintiff's attorney, Mr Kgoadi, and
told him that the allegations were not true and asked him to hold the matter in abeyance until he returned. Confident that Mr Kgoadi would not
take further steps E in the matter the applicant left for Japan on 13 August 1999 and returned to Botswana on 22 November 1999.

Upon his return the applicant discovered that the respondent had obtained an interlocutory judgment on 23 August 1999 while he was away.
The applicant avers that he is not well versed with court procedure and rules and that having spoken to Mr Kgoadi he was confident he had
done the right thing and had no reason to take F further steps as in his view Mr Kgoadi struck him "as a genuinely caring man". The applicant
was, however, shocked when he was served with the court order on 17 January 2000. His evidence, however, is that upon his return he tried to
see his attorney Mr Matlho about the summons but did not succeed as counsel's chambers were closed for Christmas vacation. He only
succeeded to see him in January 2000.

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In her and Company (Pty)the
papers Ltd.respondent avers that from 1994 she had a loveDownloaded : Tue
affair with the Feb 07 2023
applicant and16:28:57
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G latter promised herStandard
marriageTime)
and she was seduced and conceived a baby boy who was born on 28 May 1997. At the time of birth, the applicant was in the United Kingdom
 (2) British Auto Botswana (Pty) Ltd v. Alpina Building Methods (Pty) Ltd [1987] B.L.R. 451.

2001 (1) BLR p273

(3) Grant v. Plumbers (Pty) Ltd 1949 (2) S.A. 470 (O). A

(4) Promedia Drukkers and Uitgewers (Edms) Bpk v. Kaimowitz and Others 1996 (4) S.A. 411 (C).

APPLICATION to have a default judgment rescinded. The facts are fully set out in the judgment. B

Matlho for the appellant.

Kgoadi for the respondent.

Judgment

Lisimba J. This is an application for rescission of an interlocutory judgment granted by the Registrar against the applicant in default of
appearance. The record shows that on 30 June 1999 the respondent took out a writ of C summons which together with the declaration thereof
was served on the applicant on 22 July 1999. As there was no appearance the respondent obtained an interlocutory judgment against the
applicant on 23 August 1999. The present application was filed on 18 January 2000 and is opposed by the respondent.

In his founding affidavit the applicant avers that he received the writ of summons on 22 July 1999. He was at the D time preparing to leave for
Japan and as he did not have sufficient time to attend to the allegations in the declaration he called on the plaintiff's attorney, Mr Kgoadi, and
told him that the allegations were not true and asked him to hold the matter in abeyance until he returned. Confident that Mr Kgoadi would not
take further steps E in the matter the applicant left for Japan on 13 August 1999 and returned to Botswana on 22 November 1999.

Upon his return the applicant discovered that the respondent had obtained an interlocutory judgment on 23 August 1999 while he was away.
The applicant avers that he is not well versed with court procedure and rules and that having spoken to Mr Kgoadi he was confident he had
done the right thing and had no reason to take F further steps as in his view Mr Kgoadi struck him "as a genuinely caring man". The applicant
was, however, shocked when he was served with the court order on 17 January 2000. His evidence, however, is that upon his return he tried to
see his attorney Mr Matlho about the summons but did not succeed as counsel's chambers were closed for Christmas vacation. He only
succeeded to see him in January 2000.

In her opposing papers the respondent avers that from 1994 she had a love affair with the applicant and that the G latter promised her marriage
and she was seduced and conceived a baby boy who was born on 28 May 1997. At the time of birth, the applicant was in the United Kingdom
studying and only returned around 28 July 1998. It is the respondent's evidence that since his return the applicant has totally neglected the
respondent and has shown no affection towards her, refused to maintain and care for the child one Tlhompho and has no attention H for the
respondent and no longer cares for the relationship with the responded and as a result of the applicant's behaviour the respondent has been
hurt in her feelings.

In his submission Mr Matlho, counsel for the applicant, has argued that his client's failure to enter appearance was not deliberate and that he
had a bona fide defence to the claims made by the respondent. Mr Matlho

2001 (1) BLR p274

LISIMBA J

reiterated the position of his client that he was at a loss with the action taken by the respondent and that he A discussed the matter with Mr
Kgoadi before he left for Japan as seen from annexure ODI being copy of the applicant's passport showing a Japanese visa and exit stamp at
Johannesburg International Airport on 13 August 1999. Mr Matlho further stated that during his absence, the applicant left cheques for the
maintenance of the child Tlhompho and referred to paragraph 6.2 of Mr Kgoadi's affidavit. On the issue of marriage, counsel said that the B
applicant did not propose any marriage to the respondent and that even if the applicant had the intention to marry the respondent the court
can not dictate to him to do so as marriage can only be contracted by choice. On the issue of maintenance Mr Matlho says his client accepts
liability and proposes to pay P500.00 effective from January 2000. C

On the other hand Mr Kgoadi, learned counsel for the respondent, submitted that the summons was simple and as the defendant knew English
he should have understood it and should have entered appearance within time. Counsel denied the suggestion that the applicant saw him
immediately upon service of the summons. According to Mr Kgoadi's affidavit filed herein the defendant saw him on 5 August 1999 and the
applicant told him he was D going for a three month training course although Mr Kgoadi could not recollect that the applicant said he was going
to Japan. It is further Mr Kgoadi's averment that a meeting was set for 11 August 1999 at 10 a.m. at his chambers where the applicant was to
meet the respondent to discuss the matter but the applicant did not turn up. He denied that he gave an undertaking not to proceed with the
matter. In his view the applicant was merely E trying to show that he was not in default.

Mr Kgoadi further submitted that the applicant's affidavit shows that upon his return he went to instruct his attorneys and that he made several
attempts to instruct them but could not do so during December as their offices were closed for the Christmas vacation. The applicant was only
able to see his attorneys in January 2000 F and up to that time he had done nothing. In his view this shows serious dilatoriness on the part of
the applicant. Further, that the reason why the applicant went to see the other attorneys instead of seeing the respondent's attorney shows
that he was in willful default.

The power of the court to rescind judgment is provided under Order 31, rule 13 of the Rules of the High Court as follows: G

"(1) In all cases where judgment has been given by consent or in default under Order 30 or 31 such judgment may be set aside by the
court and leave given to the defendant to defend or to the plaintiff to prosecute his action.

(2) Such leave shall only be given on good and sufficient cause, and upon such terms as to costs and otherwise as the H court deems just."

To avail himself of the above provisions a party must satisfy the following considerations:

2001 (1) BLR p275

LISIMBA J

(a) He must give a reasonable explanation of his default. A

(b) He must show that his default has not been reckless or intentional disregard of the rules of court.

(c) He must establish that his application for rescission is bona fide and not made with the intention of merely delaying the
plaintiff's claim.

(d) He must show that he has a bona fide defence to the plaintiff's claim. B

These factors have been considered in several decisions of this court and in South Africa (see Elma Building (Pty) Ltd v. D.I.S. Construction
(Pty) Ltd and Others, High Court (Civil Case No. 274 of 19920, unreported at page 15; British Auto Botswana (Pty) Ltd v. Alpina Building
Methods (Pty) Ltd [1987] B.L.R. 451 at page 456; C Grant v. Plumbers (Pty) Ltd 1949 (2) S.A. 470 (O); Promedia Drunkkers and Uitgewers
(Edms) Bpk v. Kaimowitz and Others 1996 (4) S.A. 411 (C) at pages 417­418).

In this case the applicant deposed in his affidavit that when he received the summons he went to see Mr Kgoadi, the respondent's attorney,
and told him that the allegations made by the respondent were not true. Mr Kgoadi D confirms in his affidavit that such a meeting took place on
5 August but that nothing was discussed as he proposed to the applicant that they should meet with the respondent on 11 August 1999 but
the Juta
© 2018 applicant did not(Pty)
and Company show up for the meeting. However, the applicant's position
Ltd. is that Mr
Downloaded Kgoadi
: Tue Feb 07agreed that the
2023 16:28:57 matter would
GMT+0200 (Southbe kept
Africa in
Standard Time)
abeyance until the applicant returned from Japan. I note that annexure ODI to the founding affidavit shows E that the applicant travelled to
 had a bona fide defence to the claims made by the respondent. Mr Matlho

2001 (1) BLR p274

LISIMBA J

reiterated the position of his client that he was at a loss with the action taken by the respondent and that he A discussed the matter with Mr
Kgoadi before he left for Japan as seen from annexure ODI being copy of the applicant's passport showing a Japanese visa and exit stamp at
Johannesburg International Airport on 13 August 1999. Mr Matlho further stated that during his absence, the applicant left cheques for the
maintenance of the child Tlhompho and referred to paragraph 6.2 of Mr Kgoadi's affidavit. On the issue of marriage, counsel said that the B
applicant did not propose any marriage to the respondent and that even if the applicant had the intention to marry the respondent the court
can not dictate to him to do so as marriage can only be contracted by choice. On the issue of maintenance Mr Matlho says his client accepts
liability and proposes to pay P500.00 effective from January 2000. C

On the other hand Mr Kgoadi, learned counsel for the respondent, submitted that the summons was simple and as the defendant knew English
he should have understood it and should have entered appearance within time. Counsel denied the suggestion that the applicant saw him
immediately upon service of the summons. According to Mr Kgoadi's affidavit filed herein the defendant saw him on 5 August 1999 and the
applicant told him he was D going for a three month training course although Mr Kgoadi could not recollect that the applicant said he was going
to Japan. It is further Mr Kgoadi's averment that a meeting was set for 11 August 1999 at 10 a.m. at his chambers where the applicant was to
meet the respondent to discuss the matter but the applicant did not turn up. He denied that he gave an undertaking not to proceed with the
matter. In his view the applicant was merely E trying to show that he was not in default.

Mr Kgoadi further submitted that the applicant's affidavit shows that upon his return he went to instruct his attorneys and that he made several
attempts to instruct them but could not do so during December as their offices were closed for the Christmas vacation. The applicant was only
able to see his attorneys in January 2000 F and up to that time he had done nothing. In his view this shows serious dilatoriness on the part of
the applicant. Further, that the reason why the applicant went to see the other attorneys instead of seeing the respondent's attorney shows
that he was in willful default.

The power of the court to rescind judgment is provided under Order 31, rule 13 of the Rules of the High Court as follows: G

"(1) In all cases where judgment has been given by consent or in default under Order 30 or 31 such judgment may be set aside by the
court and leave given to the defendant to defend or to the plaintiff to prosecute his action.

(2) Such leave shall only be given on good and sufficient cause, and upon such terms as to costs and otherwise as the H court deems just."

To avail himself of the above provisions a party must satisfy the following considerations:

2001 (1) BLR p275

LISIMBA J

(a) He must give a reasonable explanation of his default. A

(b) He must show that his default has not been reckless or intentional disregard of the rules of court.

(c) He must establish that his application for rescission is bona fide and not made with the intention of merely delaying the
plaintiff's claim.

(d) He must show that he has a bona fide defence to the plaintiff's claim. B

These factors have been considered in several decisions of this court and in South Africa (see Elma Building (Pty) Ltd v. D.I.S. Construction
(Pty) Ltd and Others, High Court (Civil Case No. 274 of 19920, unreported at page 15; British Auto Botswana (Pty) Ltd v. Alpina Building
Methods (Pty) Ltd [1987] B.L.R. 451 at page 456; C Grant v. Plumbers (Pty) Ltd 1949 (2) S.A. 470 (O); Promedia Drunkkers and Uitgewers
(Edms) Bpk v. Kaimowitz and Others 1996 (4) S.A. 411 (C) at pages 417­418).

In this case the applicant deposed in his affidavit that when he received the summons he went to see Mr Kgoadi, the respondent's attorney,
and told him that the allegations made by the respondent were not true. Mr Kgoadi D confirms in his affidavit that such a meeting took place on
5 August but that nothing was discussed as he proposed to the applicant that they should meet with the respondent on 11 August 1999 but
the applicant did not show up for the meeting. However, the applicant's position is that Mr Kgoadi agreed that the matter would be kept in
abeyance until the applicant returned from Japan. I note that annexure ODI to the founding affidavit shows E that the applicant travelled to
Japan on 13 August 1999. Further, the founding affidavit shows that shortly after his return on 22 November 1999 the applicant tried to seek
legal advice from his attorney Mr Matlho and briefed him about the matter although on that occasion he did not have the writ of summons and
could not complete the instructions; he was only able to fully instruct Mr Matlho on or about 11 December 1999. Thereafter his attorney F went
on Christmas vacation and only resumed duty on 4 January 2000. The applicant avers that his attorneys had taken the necessary steps to
enter an appearance to defend. He was therefore shocked to receive the interlocutory judgment on 17 January 2000. In my view the applicant's
explanation that he had approached Mr Kgoadi before he left for Japan and that he thought the matter was kept in abeyance sounds
reasonable. Further his immediate attempts on his return to seek legal advice from his attorneys show that he was genuinely G interested in
taking appropriate steps in the matter. I therefore find that his explanation for his failure to enter an appearance is reasonable and shows no
recklessness or intentional disregard of the rules of court.

The next question is whether the application discloses a bona fide defence to the plaintiff's claim. The first H respondent's claim in the
declaration is headed claim A. Under this head the respondent claims that the applicant impregnated her and while he was away in the United
Kingdom, she was forced to pay lying in and medical expenses for both herself and the child after birth of the child by caesarean section in the
sum of P15,000.00. In his proposed plea attached to the founding affidavit the applicant denies this claim and avers that the delivery took place
at a government hospital

2001 (1) BLR p276

LISIMBA J

and that the expenses are imagined. Indeed I find that the figure claimed by the respondent is bold, naked and A unsupported and will therefore
require to be proved at trial.

The second claim under claim B is for maintenance. The applicant has stated that he has been maintaining the child and has exhibited deposit
slips of cash paid into the respondent's account at the First National Bank on different dates in 1998 and 1999. Although these payments were
not made at regular intervals it is evident that B some money was paid to the respondent. The applicant, in any event, does not deny paternity
of Tlhompho and has deposed that he is prepared to pay P500.00 per month. This to me shows that the applicant does not dispute liability in
respect of this claim. The only issue is on the quantum of maintenance and the date when payment is to commence and in my view these are
issues to be determined by the court. C

The last claim under claim C is for the sum of P60,000.00 for breach of promise of marriage. In respect of this claim the applicant admits that he
had a love affair with the respondent out of which a child was born out of wedlock. He, however, denies having proposed or promised to marry
the plaintiff. In fact he stated in his proposed plea that during the currency of their affair the question of marriage never arose either expressly
or D impliedly. During submissions and on being asked by the court Mr Kgoadi said the promise was oral but that the information was given to
the persons shown in paragraphs 73 and 74 of the respondent's affidavit. There are, however, no supporting affidavits from the said persons
filed in this matter and in view of the applicant's strong denial this aspect must also be proved at trial. E

In the result I find that the applicant has a bona fide defence to claim A and claim C. Accordingly this application partially succeeds and the
© 2018 Juta and Company
interlocutory judgment(Pty) Ltd. 23 August 199 is hereby set aside and the applicant
dated Downloaded : Tue Feb
is granted 07to
leave 2023 16:28:57
defend GMT+0200
those claims. (South Africaof
In respect Standard Time)
claim B,
where liability has been admitted, I will enter judgment for the maintenance of the child Tlhompho at the rate of P500.00 per month with effect
 To avail himself of the above provisions a party must satisfy the following considerations:

2001 (1) BLR p275

LISIMBA J

(a) He must give a reasonable explanation of his default. A

(b) He must show that his default has not been reckless or intentional disregard of the rules of court.

(c) He must establish that his application for rescission is bona fide and not made with the intention of merely delaying the
plaintiff's claim.

(d) He must show that he has a bona fide defence to the plaintiff's claim. B

These factors have been considered in several decisions of this court and in South Africa (see Elma Building (Pty) Ltd v. D.I.S. Construction
(Pty) Ltd and Others, High Court (Civil Case No. 274 of 19920, unreported at page 15; British Auto Botswana (Pty) Ltd v. Alpina Building
Methods (Pty) Ltd [1987] B.L.R. 451 at page 456; C Grant v. Plumbers (Pty) Ltd 1949 (2) S.A. 470 (O); Promedia Drunkkers and Uitgewers
(Edms) Bpk v. Kaimowitz and Others 1996 (4) S.A. 411 (C) at pages 417­418).

In this case the applicant deposed in his affidavit that when he received the summons he went to see Mr Kgoadi, the respondent's attorney,
and told him that the allegations made by the respondent were not true. Mr Kgoadi D confirms in his affidavit that such a meeting took place on
5 August but that nothing was discussed as he proposed to the applicant that they should meet with the respondent on 11 August 1999 but
the applicant did not show up for the meeting. However, the applicant's position is that Mr Kgoadi agreed that the matter would be kept in
abeyance until the applicant returned from Japan. I note that annexure ODI to the founding affidavit shows E that the applicant travelled to
Japan on 13 August 1999. Further, the founding affidavit shows that shortly after his return on 22 November 1999 the applicant tried to seek
legal advice from his attorney Mr Matlho and briefed him about the matter although on that occasion he did not have the writ of summons and
could not complete the instructions; he was only able to fully instruct Mr Matlho on or about 11 December 1999. Thereafter his attorney F went
on Christmas vacation and only resumed duty on 4 January 2000. The applicant avers that his attorneys had taken the necessary steps to
enter an appearance to defend. He was therefore shocked to receive the interlocutory judgment on 17 January 2000. In my view the applicant's
explanation that he had approached Mr Kgoadi before he left for Japan and that he thought the matter was kept in abeyance sounds
reasonable. Further his immediate attempts on his return to seek legal advice from his attorneys show that he was genuinely G interested in
taking appropriate steps in the matter. I therefore find that his explanation for his failure to enter an appearance is reasonable and shows no
recklessness or intentional disregard of the rules of court.

The next question is whether the application discloses a bona fide defence to the plaintiff's claim. The first H respondent's claim in the
declaration is headed claim A. Under this head the respondent claims that the applicant impregnated her and while he was away in the United
Kingdom, she was forced to pay lying in and medical expenses for both herself and the child after birth of the child by caesarean section in the
sum of P15,000.00. In his proposed plea attached to the founding affidavit the applicant denies this claim and avers that the delivery took place
at a government hospital

2001 (1) BLR p276

LISIMBA J

and that the expenses are imagined. Indeed I find that the figure claimed by the respondent is bold, naked and A unsupported and will therefore
require to be proved at trial.

The second claim under claim B is for maintenance. The applicant has stated that he has been maintaining the child and has exhibited deposit
slips of cash paid into the respondent's account at the First National Bank on different dates in 1998 and 1999. Although these payments were
not made at regular intervals it is evident that B some money was paid to the respondent. The applicant, in any event, does not deny paternity
of Tlhompho and has deposed that he is prepared to pay P500.00 per month. This to me shows that the applicant does not dispute liability in
respect of this claim. The only issue is on the quantum of maintenance and the date when payment is to commence and in my view these are
issues to be determined by the court. C

The last claim under claim C is for the sum of P60,000.00 for breach of promise of marriage. In respect of this claim the applicant admits that he
had a love affair with the respondent out of which a child was born out of wedlock. He, however, denies having proposed or promised to marry
the plaintiff. In fact he stated in his proposed plea that during the currency of their affair the question of marriage never arose either expressly
or D impliedly. During submissions and on being asked by the court Mr Kgoadi said the promise was oral but that the information was given to
the persons shown in paragraphs 73 and 74 of the respondent's affidavit. There are, however, no supporting affidavits from the said persons
filed in this matter and in view of the applicant's strong denial this aspect must also be proved at trial. E

In the result I find that the applicant has a bona fide defence to claim A and claim C. Accordingly this application partially succeeds and the
interlocutory judgment dated 23 August 199 is hereby set aside and the applicant is granted leave to defend those claims. In respect of claim B,
where liability has been admitted, I will enter judgment for the maintenance of the child Tlhompho at the rate of P500.00 per month with effect
from 1 January F 2000 up to today and hereinafter the amount shall be increased to P700.00 per month until the said child attains majority or
finishes schools whichever shall come later or until a further order of his court. The issue of costs shall be reserved until the final decision.

Interlocutory judgment set aside G

and the respondent granted leave
to defend.

M.G.S.

2001 (1) BLR p277

© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:28:57 GMT+0200 (South Africa Standard Time)
 at a government hospital

2001 (1) BLR p276

LISIMBA J

and that the expenses are imagined. Indeed I find that the figure claimed by the respondent is bold, naked and A unsupported and will therefore
require to be proved at trial.

The second claim under claim B is for maintenance. The applicant has stated that he has been maintaining the child and has exhibited deposit
slips of cash paid into the respondent's account at the First National Bank on different dates in 1998 and 1999. Although these payments were
not made at regular intervals it is evident that B some money was paid to the respondent. The applicant, in any event, does not deny paternity
of Tlhompho and has deposed that he is prepared to pay P500.00 per month. This to me shows that the applicant does not dispute liability in
respect of this claim. The only issue is on the quantum of maintenance and the date when payment is to commence and in my view these are
issues to be determined by the court. C

The last claim under claim C is for the sum of P60,000.00 for breach of promise of marriage. In respect of this claim the applicant admits that he
had a love affair with the respondent out of which a child was born out of wedlock. He, however, denies having proposed or promised to marry
the plaintiff. In fact he stated in his proposed plea that during the currency of their affair the question of marriage never arose either expressly
or D impliedly. During submissions and on being asked by the court Mr Kgoadi said the promise was oral but that the information was given to
the persons shown in paragraphs 73 and 74 of the respondent's affidavit. There are, however, no supporting affidavits from the said persons
filed in this matter and in view of the applicant's strong denial this aspect must also be proved at trial. E

In the result I find that the applicant has a bona fide defence to claim A and claim C. Accordingly this application partially succeeds and the
interlocutory judgment dated 23 August 199 is hereby set aside and the applicant is granted leave to defend those claims. In respect of claim B,
where liability has been admitted, I will enter judgment for the maintenance of the child Tlhompho at the rate of P500.00 per month with effect
from 1 January F 2000 up to today and hereinafter the amount shall be increased to P700.00 per month until the said child attains majority or
finishes schools whichever shall come later or until a further order of his court. The issue of costs shall be reserved until the final decision.

Interlocutory judgment set aside G

and the respondent granted leave
to defend.

M.G.S.

2001 (1) BLR p277

© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:28:57 GMT+0200 (South Africa Standard Time)
 M.G.S.

2001 (1) BLR p277

© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:28:57 GMT+0200 (South Africa Standard Time)