HIGH COURT OF LESOTHO
by the Honourable Mr Justice WCM Maqutu on the 23rd day of October
22nd September 2000, appellant's appeal together with the application
for condonation was dismissed with costs. The appeal was dismissed
specifically for lack of prosecutions. Reasons were to be filed on
the 23 October 2000.
was supposed to hear an appeal from the magistrate's court against
the magistrate's refusal to rescind A default judgment. It turned out
that the issue was no more the appeal against the magistrate's
judgment alone, but
application for dismissal of the appeal because of lack of
prosecution. Proceeding with the appeal (which could take place after
an application for reinstatement of a lapsed appeal) was seen as an
abuse of the court process.
had failed to respond to respondent's summons timeously, and this (in
terms of the Rules of Court) resulted in a default judgment in
respondent's favour. An application for rescission of judgment
followed. It failed, but an appeal against the magistrate's judgment
dismissing an appeal was made 25 days late. Application for
condonation of late noting of appeal was made in this court. This
application for condonation was granted more than a year later and
appellant was given leave to appeal. The appeal was immediately filed
but not prosecuted. A year later, respondent (not the appellant) set
the appeal down for dismissal.
of success in an appeal against refusal of rescission In terms of
Rule 1(1) of Order No. XXVIII of the Subordinate Court Rules,
defendant was entitled to apply for rescission of judgment "within
one month after sch judgment has come to the knowledge" of
defendant. The appellant who was the defendant in its affidavit
supporting the application for rescission of judgment stated that he
had first come to know of the judgment on the 17th November, 1996.
The writ had been issued on the 15th November, 2000. The default
judgment had been granted on the 18th September, 1996, while summons
had been issued on the 30th July, 1996, or thereabout.
no dispute that the summons had been received by appellant on the
15th August, 1996, at 8.30 a.m., but no action had been taken.
more than thirty-three days respondent who is the plaintiff who is
now the respondent, obtained a judgment by default. Pursuant to a
write of execution, a vehicle of respondent was attached and removed
from defendant's place of business.
also no dispute that on the 21st June, 1996, an identical action had
been brought in the High Court and that defendant had entered
appearance to defend and objected to the institution of the action in
the High Court, because it was a matter within the jurisdiction of
the Magistrate's Court. Plaintiff then withdrew that action and
brought it in the Magistrate's Court. It is this Magistrate's Court
action whose summons never got to the defendant's management,
although it had been properly served. Consequently plaintiff was
entitled to take judgment by default in the manner he did.
affidavit in support of an application for rescission of judgment,
defendant who is now appellant says the summons from the Magistrate's
Court were served on the 15th August, 1996, on a security officer who
did not refer them to management after signing for them. Management
of defendant only knew of the Magistrate's Court action when a writ
of execution was issued and defendant's property was being seized.
This is not disputed. Nor can it be disputed that defendant was at
fault in not defending the action. This is a common problem in
offices and companies. Papers served on junior officers from time to
time do not reach management.
defendant had a defence based on the contract between parties. A
one sided contract, but a contract, nevertheless. Indeed paragraph 3
of plaintiffs answering affidavit does not deny awareness of the
indemnity clause. It could not be said there was no bona fide defence
to the plaintiff's claim.
of Order No. XXVIII of the Subordinate Court Rules provides:
"The court may on the hearing of any such application, unless it
is provided that applicant was in wilful default, and if good cause
is shown, rescind or vary the judgment in question...."
a default judgment violates the principle of audi alteram partem,
consequently courts grant default judgment to meet other ends of
justice, such as justice delayed is justice denied, not to deny one
of the parties a hearing. "As a general rule, if wilful default
is not shown, and the court has reason to think that there might be a
defence, the application should be granted."—Jones &
Buckle The Practise of Magistrate Courts in South Africa 6th Edition
at page 678. In De Witt's Auato Body Repairs (Pty) Ltd. v Fedgen
Insurance Co. 1994 (4) SA 705 at 711 EF Jones J put the issue as
"An application for rescission is never simply an enquiry
whether or not to penalise a party for the failure to follow the
rules and procedure laid down for civil proceedings in our courts."
more that is involved because as granting a default judgment is a
should not refuse to reopen where there is doubt as to
the default has been otherwise than wilful; they should lean rather
towards reopening than towards refusing. See Du Plessis v Tager
1953(2) SA 275 (as translated by Jones & buckle The Practice of
Magistrate Courts in South Africa 6th Edition at page 678).
of disproving that the default was wilful is on the respondent. All
applicant has to do is to set forth reasons for his non appearance.
That is why in Rule 2(l)of Order XXVIII of the Subordinate Court
Rules the words "unless it is proved" have been inserted.
To give a history of the insertion of these words in this Rule. Jones
& Buckle The Practise of the Magistrates' Courts in South Africa
6th Edition at page 678 say:
"Whereas under previous rules the burden was on the applicant to
prove that he 'was by reasonable cause prevented from attending' this
sub-rule now casts the burden of proving wilful default on the
for this reason that Peete J condoned the late noting of appeal by
appellant. There were prospects of success because the magistrate on
the papers appeared to have erred in refusing to grant appellant a
rescission of judgment. Realising the urgency of the matter Peete J
on the 11th May 2000 made the following order:
condonation be and is hereby granted to Appellant for the late
filing of the Notice of Appeal;
Appellant shall file a Notice of Appeal;
Appellant shall file the record of Appeal within 7 days.
6 4. The
Appellant shall pay the costs of this application."
record of appeal before me shows that appellant filed the reasons of
appeal on the 12th May 1999 which was the day after Peete J had made
failure to prosecute appellant's appeal I have already shown that
Peete J had ensured that the appeal was heard as soon as possible.
The record of appeal was filed on the 20th May 2000. The record of
appeal was filed two days later than the time Peete J had laid down.
After that appellant did not prosecute the appeal.
day of hearing appellant proceeded to argue the appeal as if nothing
had happened and demonstrated to the court's satisfaction as Peete J
must have found that a rescission of judgment should have been
granted. Appellant ignored its failure to conform with the rules.
respondent addressed the court and defended the Magistrate's
judgment, the court drew the attention of the respondent to the
principles and the rules that govern rescission of judgment. This the
magistrate had overlooked. The sole issue became one of appellant's
dilatoriness and failure to conform with the rules and ultimately the
failure to prosecute its appeal. It was at that stage that appellant
applied for condonation of its failures.
be observed that as this appeal had lapsed in July 1999 in terms of
Rule 52(1)(d) the onus of reinstating the appeal was on the
appellant. This he
only succeed in doing by showing good cause. Respondent should have
just issued a writ of execution. Appellant would have been obliged
for the second time to seek the court's indulgence to stop a lawful
execution of judgment.
problem which appellant also had was that it did not give respondents
prior notice of the application for condonation of failure to comply
with the rules. This application was being made (as facts turned out
to be) solely to defeat respondent's application for dismissal of
appellant's appeal, because respondent had proved appellant was in
breach of Rule 52(1) of the High Court Rules 1980. These rules
provide that an appeal should be set-down within four weeks. On this
occasion, there was no excuse for not doing so. Peete J had in fact
directed that the record of the appeal should be filed of record
within seven days. It had been filed within nine days —a delay
of two days. From the 20th May 1999 there was no excuse for not
setting the matter down. The maximum period of sixty days elapsed
without any attempt to set the matter down.
It is a
notorious fact that Rule 52 provides a lot of problems because
records for appeals to the High Court cannot be prepared timeously in
many cases, especially those from the Judicial Commissioner's Court.
Even so where records of proceedings should have been ready
timeously, this court is obliged to take a dim view of delays. It
seems to me that both before this court and the Court of Appeal, the
case of Motlalentoa v Monyane (1985 - 89) Lesotho Appeal Cases 244
was not decided on a complete reference to Rule 52 of the High Court
Rules 1980. It was a Judicial Commissioner's Court appeal yet it was
decided under Rule 51(1) exclusively when it should have been
governed by Rule 52(5).
It was by
mistake brought and treated as a Rule 52(1) case, had the proper rule
been applied the outcome in Montlalentoa v Monyane should have been
different. This oversight was not spotted unfortunately. Rule 52
itself gives the court extensive discretionary powers of condonation.
This fact should not be overlooked.
of the High Court Rules 1980 further gives this court residual power
to condone breaches of rules in exceptional cases "if it
considers it to be in the interests of justice". A very good
case must be made. It is not enough to say a practice has grown
because of which rules of court are disregarded. In Motlalentoa v
Monyane 1985 Lesotho Appeal Cases (1985-89) 244 (these cases are
compiled by K.A. Maope) at page 245 Mahomed JA at page 245 found as a
"There were weighty grounds in support of the conclusion arrived
at by the court a quo. The provisions of Rule 52(1) are clear and
peremptory: they have been in existence for 7 years; the appellant
and her husband have at all relevant times represented by experienced
counsel; the notice of motion contained no prayer for condonation;
the application for condonation was not made by the prospective
appellant from the judgment of the Judicial Commissioner, but by his
wife, and no facts have been averred in the affidavits relevant to
the existence of the practice referred to, the bona fides of the
appellant and the balance of convenience."
already said that counsel on both sides were not aware that the
Motlalentoa v Monyane case was governed by Rule 52(5) and that
appellant in that case was probably not at fault. Nevertheless the
principles Mahomed JA applied gover
for condonation of rules of court generally. In other words if a
properly motivated application had been made and the special facts
that could move the court to condone a delay had been alleged, the
court might condoned a failure to comply with this rule. In so doing,
the court has to be alive to the fact that it should not make
compliance with the rules optional. The court should always bear in
mind that time limits set in the rules are intended to speed up the
judicial process so that justice is not denied through delays. Even
the existence of a practice that does not strictly comply with the
rules must be clearly spelt out and justified in the special
circumstances of the case.
be borne in mind at all times that the court uses its coercive powers
to speed up litigation and grants default judgments where rules are
not being adhered to. This power exists because delays in litigation
can become denials of justice. As Atkin LJ said in Evans v Bartlam
 AC 473 at 480:-
"The principle is that unless and until the court has pronounced
a judgment upon the merits or by consent, it is to have the power to
revoke the expression of its coercive power...."
words for good cause, it can be persuaded to rescind its judgment so
that both sides can be heard. If there is an application for
indulgence after another, and the party continues to being default
for one reason or another, the court might feel there is an abuse of
court process by using legitimate court procedures to delay or
subvert the course of justice. When a court feels this way it will
refuse to condone defaults.
case, the urgency and the speeding up of the hearing of this appeal
that Peete J had ordered was ignored. There had been a condonation of
a delay caused by appellant already. Applicant should have been aware
of the fact that delays are prejudicial to it and to respondent.
Applicant was also aware that proceedings were instituted in August
1996. Four years had elapsed before a rescission of a judgment had
taken place. Witnesses of both sides including its employees might
not available in the distant future if this delay became further
protracted. It was as if appellant did not want the court ever to go
into the merits of the dispute between the parties. To put what I
mean in the words of Jones J in De Witt,s Auto body Repairs (Pty) Ltd
v Fegen Insurance Co. 1994(4) SA 705 at 711:-
"The question is, rather, whether or not the explanation for
default and any accompanying conduct by the defaulter, be it wilful,
negligent or otherwise, gives rise to the probable inference that
there is no bona fide defence, and hence that the application for
rescission is not bona fide."
to appellant's counsel, I came to the conclusion that she had run out
of explanations or justifications for appellant's default.
Applicant's counsel was allowed to canvass matters outside the
record. She looked for an invitation to respondent to set the matter
down, in appellant's file. This invitation was allegedly made in
November 1999 inviting respondent before the registrar to obtain a
date of hearing. It turned out that the document (if it existed at
all) was a typed, unsigned and undated paper. It had not been
dispatched to respondent or acted upon. Eventually on the 22nd May
2000 (more than a year and two days after the record of appeal had
been transmitted to this court) respondent set the
down in order to have it dismissed.
expected of me and the magistrate (because an appeal is a rehearing
of this rescission application) was put by Jones J as follows:
"The magistrate's discretion to rescind the judgments of his
court is therefore primarily designed to enable him to do justice
between the parties. He should exercise that discretion by balancing
the interests of the parties, bearing in mind the considerations
referred to in Grant v Plumbers (Pty) Ltd... and also any prejudice
which might be occasioned by the outcome of the application. He
should also do his best to advance the good administration of
justice." (De Witts Auto Body Repairs (Pty) Ltd v Fedgen
Insurance Co. Ltd at 711 GH)
might have been too early for the magistrate to make the conclusion
that appellant was only playing for time, I am labouring under no
such a disadvantage. I am satisfied that appellant is not interested
in the hearing of the merits of this case. If appellant is, the
conduct displayed is dilatory, negligent and highly prejudicial to
respondent. A court of justice is obliged to put a stop to this
conduct once and for all. Peete J tried to make appellant to get this
matter heard expeditiously by condoning appellant's delay on
condition that appellant speeded up the hearing of this appeal, but
this did not help. I do not think this court ought to be indulgent
any further towards appellant, respondent has to be considered too.
happened in this case is that two months within which the respondent
might have set the appeal for hearing in terms of Rule 52(l)(c) had
also elapsed. Consequently in terms of Rule 52(1 )(d)
"If neither party applies for a date of hearing as aforesaid the
appeal shall be deemed to have lapsed unless the court on application
by the appellant and an good cause shown shall otherwise order."
and correct procedure was for respondent to have issued a warrant of
execution because there was no more any appeal. It had lapsed for
lack of prosecution. Then appellant would have ben forced to apply
for the reinstatement of the appeal. Respondent would then have
opposed the application for reinstatement. That would have been the
end of the appeal if the court refused to reinstate it because of
appellant's aforementioned conduct. There really is no meaningful
difference. What applicant did was to set the matter down although it
had lapsed. The purpose was to ensure that the court takes a final
decision that this appeal has lapsed and is definitely disposed of
for lack of prosecution. It was at that stage that appellant made a
verbal application for reinstatement if the court had been persuaded
that there is good reason for doing so, it might have reinstated the
appeal. It refused appellant's application.
was consequently the following:
and appeal dismissed with costs for lack of prosecution. Reasons will
be filed on the 23rd October 2000".
aforegoing are therefore reasons for my order.
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