CIV/A/16/83

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

S L
BOKAKO Appellant

v

SOLICITOR
GENERAL Respondent

JUDGMENT.

Delivered
by the Hon. Mr. Justice J.L. Kheola on the 9th day of August, 1985

The
appellant was the defendant and the respondent was the plaintiff in
the Subordinate Court for the district of Maseru. The plaintiff

issued summons claiming

1. An
   order ejecting the appellant from certain premises, to wit Unit
   No.78 Craft Centre, Maseru,

   
   

2. An
   order directing the defendant to open the two workshops,

   
   

3. Further
   and/or alternative relief,

   
   

4. Costs
   of suit.

   
   

It is
common cause that on the 31st May, 1982 the Department of Trade and
Industry as the landlord of Maseru Craft Centre served
the appellant,
as tenant occupying unit 78 of the said Maseru Craft Centre, with a
notice of termination of the lease. The appellant
refused to vacate
the premises

2

On the
30th September, 1982 the respondent applied for a summary judgment on
the ground that the appellant had no bona fide defence.
The
applications was refused. On the same day the appellant was ordered
to file his plea within fourteen days.

On the
5th October, 1982 the appellant made a request for further
particulars These were duly supplied on the 27th October,1982.
On the
7th December, 1982 the respondent made an application for a default
judgment on the ground that he (appellant) had failed
to file his
plea within fourteen days in accordance with the Court order The
clerk of court granted the default judgment and a
writ of execution
was issued.

On the
6th May, 1983 Mr. Snyman For the respondent and Mr. Maema for the
appellant appeared before a magistrate and the default
judgment
granted by the clerk of court was rescinded by mutual agreement The
respondent was again ordered to file his plea within
fourteen days
from the date the order was made. Again he failed to comply with the
court's order On the 31st May, 1983 the appellant
applied for and
obtained a default judgment.

It
appears that on the 19th January, 1983 the appellant had requested
for further and better particulars. The respondent ignored
the
request because he had already obtained a default judgment on the 7th
December, 1982 I find it very strange that on the 6th
May, 1983 when
the rescission of the default judgment was granted, Mr. Snyman never
raised the question of his request for further
and better particulars
He made no application to compel the respondent to furnish the
particulars He was given fourteen days within
which to file his
client's plea but he did not do so.

On the
11th July, 1983 the appellant again lodged an application for
rescission of the default judgment granted on the 31st May,
1983. The

3

learned
Resident Magistrate dismissed the application on the ground that it
had become very clear that the appellant was not prepared
to take
heed of the orders of the court and its rules He pointed out that on
two occasions the appellant was ordered to file his
plea within
fourteen days but had failed to do so. He also criticised the
appellant's attorney for stretching these proceedings
to a point
where it can be said that these delaying tactics amount to an abuse
of court process I entirely agree with the learned
Resident
Magistrate that the appellant's attorney ought to have realised that
these proceedings have dragged on for a period of
over four years
because of his failure to comply with the orders of the court and its
rules. He gave no reasonable explanation
why on two occasions when
his client was given fourteen days within which to file his plea, he
failed to do so If the respondent
had refused to supply him with
further and better particulars it was his duty to apply to the court
for an order compelling the
appellant to supply such particulars.

Mr.
Snyman also failed to comply with Order No IX Rule 2 of the
Subordinate Court Rules in High Commissioner's Notice III of 1943

which provides

"Such memorandum shall be signed by the defendant, and shell
state the full address for service (which address except in places

where there are fewer than three attorneys or firms of attorneys
practising independently of one another, shall be not more than
three
miles distant from the court­house) and also the postal address
of the person who has so signed.'

The
appellant's counsel did not comply with this requirement hence his
late receipt of court process or filing his process out of
time is
not to be condoned. In one of his affidavits the appellant alleges
that on the 31st May, 1983 when the default judgment
was granted
against him, it was a holiday in the Republic of South Africa. That
has got nothing to do with this country If his
attorney failed to

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come to
court on that day because it was a holiday in his country, ho was
negligent not to observe that the 31st May, 1983 was not
a holiday in
this country.

It seems
to me that the trial court went out of its way in an attempt to
enable the appellant to file his plea but he abused that
privilege
with his delaying tactics In any case, I have locked at the
appellant's plea dated the 1st June, 1983 and I am convinced
that he
deliberately played delaying tactics because he simply did not have
any defence against the claim He admits that the Lesotho
Government
is the lawful owner of the Maseru Craft Centre and admits that he
paid rent for the occupation of unit No.78 of the
Maseru Craft Centre
In paragraph 2 of his plea he alleges that he has a title to occupy
and administer the said Craft Centre. This
allegation has no basis,
he is a tenant and was given a one month's notice to vacate the
premises Whatever title he had to the
premises was based on his
tenancy which was lawfully terminated when he was given notice to
vacate.

The
appeal is dismissed. The appellant must pay costs.

J.L.
KHEOLA

JUDGE

26th
November, 1985.

For
Appellant Mr. Snyman

For
Respondent Mr Mpopo