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
An order ejecting the appellant from certain premises, to wit Unit No.78 Craft Centre, Maseru,
An order directing the defendant to open the two workshops,
Further and/or alternative relief,
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
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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 Maema for the appellant appeared before a magistrate and the default judgment granted by the clerk of court was rescinded by mutual agreement The respondent was again ordered to file his plea within fourteen days from the date the order was made.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
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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