HIGH COURT OP LESOTHO
matter of :
CASSIM 1st Applicant
DAMBHA 2nd Applicant
TIMBERS 1st Respondent
by the Hon. Acting Mr. Justice D.S. Levy on the 27th November. 1985.
seek rescission of a judgment granted by this Court in default of
appearance to defend by either Applicant.
Applicants had been served personally with the Summons initiating the
action against them on 27th February 1984.
Summons was in the form of a combined Summons and the particulars of
claim set out clearly that the Plaintiff's cause of action
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
was issued out of this Court. This writ was executed on 21st January
1985 when various items of goods were attached by the
not until 18th June 1985 that the present proceedings were launched.
Applicants allege that they were coerced into executing
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.
alleged by the Respondent that the 1st Applicant's husband had been
arrested on a warrant of execution of an order of the
Court Ficksburg in order to found jurisdiction by reason of his
presence in the Republic of South Africa where he
is a peregrinus.
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.
bring their applications in terms of Rule 27(6) of the Rules of this
Court which provides that the Defendant may within(21)
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.
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.
"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(0)..
been held that it is sufficient for this purpose if the Applicants
show that they were not in wilful default nor grossly
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.
also no explanation before this Court why the Applicants took six
months to bring their application after execution had
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.
satisfied therefore that the Applicants have not shown good cause for
the setting aside of the default judgment against them
application is dismissed and the rule is discharged with costs.
Applicants : Mr. S.C. Fick
Respondents : Mr. G.N. Mofolo
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