HIGH COURT OF LESOTHO
Appeal of :
by the Hon. Mr. Justice B.K. Molai on the 30th day of April, 1987.
an appeal against the judgment of the Senior Resident Magistrate of
Maseru dismissing an application for rescision of the
of execution and costs of the application.
appeal is based on a long list of grounds which may, however, be
summed up in that in dismissing the applica-tion as he did,
magistrate erred in law.
Respondent and the Appellant were, respectively, Plaintiff and
Defendant in the court a quo. They were both represented by Counsels.
common cause that on 16th January, 1985, the Respondent duly assisted
by her husband filed, with the clerk of the court in
commencing an action in which she sued the appellant also duly
assisted by her husband for damages in the amounts
of (a) Ml,000 for
assault, (b) M1,000-00 for injuria, plus (c) costs of suit and/or (d)
alternative relief. The appellant intimated
her intention to defend
the action and filed her plea.
hearing commenced on 10th June, 1985 and two witnesses testified in
support of the Respondent's case. Several post-ponments
and eventually the matter came for hearing again on 18th November,
significant to note that on that day, 18th November, 1985, the record
of proceedings reveals the trial magistrate having recorded
following at page 17 :
"Mr. Masoabi rang this morning 18-11-85 to the effect that he
and Mr. Mphutlane agreed that this matter proceeds in the afternoon.
On 18-11-85 only Plaintiff and her lawyer, Mr. Mphutlane before court
at 2.56 p.m. Mr. Mphutlane informs court that Mr. Masoabi
to him that he had a trial in the High Court in the matter of Mapota
Masupha and Pioneer Motors. Mr. Mphutlane rang Mr.
about 2.05 and was told by Mr. Masoabi's secretary that he would be
delayed. Around 2.30 when Mr. Mphutlane rang
again he was told that
Mr. Masoabi had just left office for court. After another 25 or so
minutes on scouring around all court
premises, including the High
Court, Mr. Mphutlane found no sign of Mr. Masoabi whereupon Mr.
Mphutlane moved that the matter
be proceeded with. No sign of Mr.
Masoabi's client. Court granted his plea. Court orderly ordered to
call defendant's name three
times around court room and reports that
defendant is not there."
absence of Mr. Masoabi, court proceeded to hear the third witness for
the Respondent who then closed her case. After Mr.
addressed the Court, judgment was entered in favour of the Respondent
who was awarded damages in the amounts of M750
for assault and M850
for injuria plus costs.
January, 1986, the appellant who was then represented by Mr. Maqutu
and no longer Mr. Masoabi filed with the clerk of the
court in Maseru an application in which she moved the court for an
order to rescind the judgment, stay execution
plus costs. The
grounds on which the appellant based her application were in effect
that she only came to know of the judgment
on 14th January, 1985 (It
should in fact read 14th January, 1986), she had a bona fide defence,
Mr. Masoabi did not advice her
that the hearing was to continue
on 18th November, 1985 and she was, therefore, not in wilful default.
The application was
streneously opposed by the Respondent who
maintained that the Appellant and/or her lawyer were in wilful
default and the application
for rescision was rightly refused.
been pointed out earlier, the Appellant was in the court a quo
represented by counsel, Mr. Masoabi. The salient question
therefore, whether or not Mr. Masoabi for the appellant was in wilful
default. On the record of proceedings there can be no
doubt that Mr.
Masoabi knew very well that the case was set down for the 18th
November, 1985 when the hearing would continue in
the afternoon. He
nonetheless decided to absent himself for no given explanation.
Whatever excuse the appellant may now advance
as the reason for Mr.
Masoabi's non-attendance on 18th November, 1985 seems to me an
inadmissible hearsay evidence for Mr. Masoabi
himself never filed any
affidavit to explain his rather contemptuous disregard of the court
and the rights of the Respondent.
Villiers, J.P. once put it in De Beer v. Dippenaar 1922 O.P.D. 196 at
"When a, person knows very well that the case is set down for a
certain day, and offers no excuse which is accepted by the
magistrate, then it seems to me that there is wilful default."
entirely agree. That being so, I come to the conclusion that in the
circumstances of the present case, the question whether or
Masoabi, for the appellant, was in wilful default must be answered in
the affirmative. On that reason alone, the trial
perfectly empowered to refuse to rescind the judgment - See Rule 2 of
Order No. XXVIII of the Subordinate Court
Rules P.648 of the Laws of
Basutoland (1960 Ed.) Vol.1. His decision in that regard cannot,
therefore, be faulted.
been argued that the appellant did not, in her founding affidavit,
state that she had been assisted by her husband to bring
application for rescision and the application should on that
ground fail. It must, however, be observed that the proceedings
rescision were incidental to the main action for damages. The summons
in the main action clearly stated, and this was, indeed,
the flea, that the appellant was sued duly assisted by her husband.
Whether in the circumstances it was still necessary
to repeat this
incidental proceedings for rescision, I am not so sure. I, however,
consider it unnecessary to decide this point now as I
taken the view that the application for rescision could properly be
dismissed on the ground of wilful default.
forgoing, it is obvious that the view that I take is that this appeal
ought not to succeed and it is accordingly dismissed
Appellant : Mr. Nchee
Respondent : Mr. Mphutlane.
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