CIV/T/77/84
IN THE HIGH COURT OF LESOTHO
In the matter of :
J.O. CASSIM 1st Applicant
RAZAK DAMBHA 2nd Applicant
V
FEDERATED TIMBERS 1st Respondent
THE DEPUTY SHERIFF
FOR BUTHA-BUTHE
DISTRICT 2nd Respondent
JUDGMENT
Delivered by the Hon. Acting Mr. Justice D.S. Levy on the 27th November, 1985.
Applicants seek rescission of a judgment granted by this Court in default of appearance to defend by either Applicant.
Both Applicants had been served personally with the Summons initiating the action against them on 27th February 1984.
The Summons was in the form of a combined Summons and the particulars of claim set out clearly that the Plaintiff's cause of action was based on a written undertaking to pay an amount of M15099.56 being the balance of a debt of M19099.66 owing to the Plaintiff by certain Ayob Agencies. A copy of the written undertaking was annexed to the Summons. Default judgment was entered against the Defendants on 21st May 1984 for the amount claimed with costs, and on 24th August 1984 a writ for the amount of M15099.56 together with costs in an amount of
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M280.60 was issued out of this Court. This writ was executed on 21st January 1985 when various items of goods were attached by the Deputy Sheriff.
It was not until 18th June 1985 that the present proceedings were launched. Applicants allege that they were coerced into executing the written undertaking in favour of the Plaintiff by reason of the fact that the driver of the motor car, who is 1st Applicant's husband, had been arrested in Ficksburg O.F.S. by members of the South African Police in connection with a debt admittedly owing by 1st Applicant's husband to the Plaintiff. Because of his arrest they feared that he would be unable to continue his journey to Natal with his passengers, and so, to secure the release of their driver, the Applicants agreed to give the undertaking in question.
It is alleged by the Respondent that the 1st Applicant's husband had been arrested on a warrant of execution of an order of the magistrates Court Ficksburg in order to found jurisdiction by reason of his presence in the Republic of South Africa where he is a peregrinus.
It is apparent from the affidavits that the debt has never been disputed and in fact an amount of M6000 was paid that day to Plaintiff's
attorneys in reduction of the debt.
Applicants bring their applications in terms of Rule 27(6) of the Rules of this Court which provides that the Defendant may within(21) twenty one days after he had knowledge of a default judgment granted against him, apply to set aside such judgment and the Court may on good cause shown set it aside.
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I have grave doubts whether the arrest of the 1st Applicant's husband was such unlawful pressure upon her and 2nd Applicant as may be said to amount to coersion upon them to give the undertaking. It seems to me that the Plaintiff was apparently within his rights in effecting the arrest of the 1st Applicant's husband ad fundandum jurisdictionem and if this would have resulted in his failure to carry out his social contract to his wife and friend to continue on his journey to Durban with them this may have been a matter of some inconvenience but which cannot for one moment be said to amount to the exercise of unlawful coercion by the Applicant to secure the release of the debtor.
Furthermore, "good cause" as referred to in rule 27 requires a proper explanation satisfactory to the Court as to why the Applicants failed to defend the summons that had been served upon them. See Grant v Plumbers (Pty) Ltd. 1949(2) S.A. 470(O).
It has been held that it is sufficient for this purpose if the Applicants show that they were not in wilful default nor grossly negligent in not defending the action. But when no explanation at all is offered for the default then the Court can only assume that there is no explanation available to the Applicants.
There is also no explanation before this Court why the Applicants took six months to bring their application after execution had been levied, and when presumably, the judgment came to the notice of one or the other of them, while Rule 27 prescribes 21 days for the bringing of the application after such knowledge has been acquired.
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I am satisfied therefore that the Applicants have not shown good cause for the setting aside of the default judgment against them and the application is dismissed and the rule is discharged with costs.
D.S. LEVY
ACTING JUDGE.
27th November, 1985.
For the Applicants : Mr. S.C. Fick
For the Respondents : Mr. G.N. Mofolo