HIGH COURT OP LESOTHO
LES (PTY) LTD Applicant
LESOTHO (PROPRIETARY) LIMITED Defendant
by the Honourable Mr. Justice T. Monapathi on the 27th day of July.
Application, which was moved on an urgent basis, I made the following
Interim Order in favour of Mr. Hlaoli's client, on
the 26th June
the Deputy Sheriff (Mr. D. Mandipaka) be joined as the 2nd
the writ of Execution in the case . number CIV/T/145/94 (the action)
pending the, finalization of the application. In the meantime the
Applicant/Defendant's goods removed on the strength of the writ
the 27th June 1994) be refunded and be restored to the premises of
the Applicant/Defendant shall file a bond in the sum of M2,000.00 to
satisfy the security of costs including the Deputy Sheriff's
the prayer for rescission of judgment shall be dealt with in the
ordinary way on the return date.
the prayers (a) (b) (c) above shall operate with immediate effect,
the return date be fixed for the day of the 30th June 1994 at 9.30,
30th June 1994 the matter was argued by Mr. Hlaoli for Applicant and
Mr. Mare for Defendants, Judgment was to follow. I had
satisfied that the orders had been complied with, and
parties would broach settlement of this complicated matters as I had
encouraged them to do. The latter aspect was most
made my remarks in one decision about (air play being the bedrock on
which the rules of Court operate. I am to remark in
this judgment as
what havoc can be brought about by an attempt to strictly adhere to
the rules of Court even where their logic
would lead to absurdity.
Equally important would be the timing of the steps to taken by a
practitioner and not to insist on a right
of way (figuratively
speaking) where such insistence would result in demonstrable lack of
6th April, 1994 the Plaintiff filed his summons in the action, which
was not accompanied by a declaration (see Rule 21),
were the claims contained in the summons:
Order declaring the dismissal of Plaintiff by Defendant as wrongful
of the sum of M27,015.00 being in respect of salaries due to the
Plaintiff by Defendant but notwithstanding demand, Defendant
failed and/or neglected to pay
the aforesaid sum;
at the rate of 18.25 per annum a temporal morae;
and/or alternative relief.
It was on
the 23rd May 1994 that the Plaintiff was served with a notice of
appearance to defend. Before then (On the 31st May 1994)
Defendant had been served with a Plaintiff's declaration and this was
accompanied by an application for summary judgment (see
Rule 28). It
was on the 2nd June 1994 that the Plaintiff was served with a request
for further particulars. On the 13th June 1994
the Plaintiff was
served with a Notice in terms of Rule 30(1) in which the defendant
herein hereby makes application to the above
Honourable Court for the
setting aside with costs the plaintiff's application for summary
judgment. On the basis that: " it
is improper proceedings in as
much as the defendant has properly filed notice of appearance to
defend and Requested further particulars
to enable it to plead."
It is important to show how the rule 30(1)(i) couched. It is as
"30(i) where a party to any cause has taken an irregular or
improper proceeding or improper step any other party to such cause
may within fourteen days of taking of such step or proceeding apply
to Court to have it set aside. Provided that no party who has
any further step in the cause with knowledge of the irregularity or
impropriety shall be entitled to make such application."
It is to
be noted that the summary judgment was to be heard on the 13th June
1994 at 9.30 a.m. It was only on that day at 9.15 a.m.
that the said
defendant's notice in terms of Rule 30(1) was served on the offices
of the Plaintiff's Attorneys. Apparently the
Attorney moving the
application for summary could not have been aware that the service of
the notice had been made.
13th June 1994 the matter having been enrolled, the matter was
postponed to the following Monday the 20th June, 1994 by my
Molai J. As the Plaintiff's Attorney told this Court it was for the
reason that the learned judge ordered the Plaintiff
to first file
security for costs (being a perigrinus) as requested by the defendant
on 23rd May 1994. It should not escape notice
that the plaintiff's
declaration contained a paragraph 6 and prayers as follows:
has suffered damages in the sum of M27.015.00 being in respect of
salaries due to plaintiff by defendant in lieu of notice.
plaintiff prays for judgment against defendant for:
of the sum of (M27,015.00. .
at the rate of 18.25%.
and/or alternative relief."
important to note the following things:
prayers in the declaration differed with those in the summons in
that the prayer (1) in the summons had been removed. That
been for a declaration, I had not been sure that this can be done
without having applied for amendment first, This
I thought was more
so because the
was clearly defended and was being opposed. But there is now no doubt
that a summary judgment may be applied for in respect
of claims set
out in rule 28 even though the summons contained other claims (see
Evelyn Haddon & Co. Ltd v Leojanko (PtY) Ltd
1967 (1) SA 662(0).
evidence having been led it was not clear how was the sum of M27,O15
has been arrived at. This is more interesting when
one notes that it
was in February 1994 when plaintiff's services were terminated. But
such evidence is not necessarily required
in terms of Rule 27(5).
all this can be easily explained when regard is had to the letter of
appointment which was annexed to the papers. The letter
terms and conditions which include monthly salary. But then there
would probably be a dispute as to how and why plaintiff
terminated or dismissed.
the same, plaintiff proceeded, and appeared before my brother Molai J
when summary judgment was granted in terms of the
prayers set out in
the declaration to the summons. The plaintiff informed the learned
judge that there was no intention to oppose
the summary judgment. How
correct was this? It is on
strength of this judgment that the plaintiff proceeded to levy
execution of the defendant's property which called for this
applicant's response by way of this application. In terms of Rule
28(3) the only way a defendant should oppose an application for
default judgment is by doing one of the following;
security to the plaintiff to the satisfaction of the Registrar for
any judgment including such costs which may be given or
the Court by affidavit or with leave of the Court, by oral evidence
of himself or of any other person who can swear positively
fact that he has a bona fide defence.
has submitted that the application should fail on the following
grounds: That the Applicant has failed to respond properly
application for summary judgment and secondly that a summary judgment
cannot be removed by way of rescission but by a judgment
(invalidating the same). Let us investigate the two grounds.
made a broad overview of each step taken by the respective parties it
opportune now to seek to arrive at a
to the problem by performing a balancing act.. This can be introduced
by asking the following questions: Having been served
with a. notice
of intention to defend was the plaintiff entitled to file a
declaration? Yes he was entitled to do so. Having been
served with a
notice of intention to defend was the plaintiff entitled to file an
application for summary judgment? The answer
should be in the
affirmative. Having filed a declaration was the plaintiff entitled to
file an application for summary judgment.
The answer is in the
negative (see Esso Standard SA (Pty) Ltd vs Virginia Oils &
Chemical Go. (Pty) Ltd 1972 (2) SA 81(o))
It is because the
application can be founded on a simple summons. This is similar to a
situation where plaintiff elects to furnish
further particulars of
his claim after filing an application for summary judgment (see
Jacobs vs FPJ Finans (Edms) BPK 1975 (3)
SA 345 (0)). He forfeits his
right to proceed on the summary judgment.
been served with a notice in terms of Rule 30 (1) on the 13th June
was the plaintiff entitled to proceed and such to obtain
the 20th June 1994? He should not have ignored the notice. It was of
interest to find out as to why the defendant chose
to ignore the
summary judgment but proceeded to request for further particulars and
then waited to file a notice in terms of Rule
30(1) on the day on
which the application for default judgment was enrolled. It is also
interesting to note
defendant's notice does not appoint a date and time on which the
application would be made. This seems to be implied in
"within fourteen days" and "apply to court."
There are many interpretations to the word "apply"
most appropriate in the circumstances would seem to be in the context
of "make an application by way of a request,
a motion to a court
or judge (see Mobbs Ltd vs Sergeant Ltd 1936 EDL 367). But again, in
this regard, one would have to compare
the above interpretation with
the specific way in which Rule 29(4) (on exceptions) is framed: "An
exception on any grounds
may be set down for hearing on a date
allotted by the Registrar or notice given to both parties."
Again the latter rule may
imply that there would be no requirement
that the Registrar shall be asked to fix a date in the notice in
terms of Rule 30(1) but
the party who applies shall himself appoint
such a date in the notice, as in a notice of motion. In Theunissen vs
Payne 1946 TPD
680 the words "application shall be made within
fourteen days" in Section 7 of ordinance No4 of 1927 (T) was
to mean that the application shall be set down on the
roll within a period of fourteen days and not merely that notice of
shall be given within that time. I have not thought
of the distinction or significance of the use of the word "may"
in the Rule 30 (1) as against the clearly imperative "shall"
used in the above ordinance in Theunissen vs Payne case (above
cited). Another case which would be instructive in this regard is
vs Uys 1974(3) SA 800 (E).
another aspect to the defendant's notice in terms of Rule 30(1) to
which I must advert. It is this aspect as to whether
it was a good
step. This is so when tested against the proviso to the said Rule
30(1). The proviso reads:
"Provided that no party who has taken further steps in the cause
with the knowledge of the irregularity or in-propriety shall
entitled to make such application."
the defendant who on the 2nd June, 1994 served the plaintiff with at
request for further particulars? I would hold that
disentitled itself from attaching the application for default
judgment by reason of filing a request for further
particulars as he
has done (after service on of the application for summary judgment).
I would hold further that the defendant's
attempt to impeach the
application for summary judgment on the ground that a request for
default judgment had been requested was
a self created prejudice or
predicament. I have no hesitation in deciding that the Defendant was
adopting a wrong procedure or
step in the circumstances.
ignored the application under Rule 30(1). A plaintiff's proper cause
where any proceeding in a cause is
is not to proceed as if there is no such process at all but to apply
to Court under this rule for an order setting it
aside (see Schwee vs
Schwee 1909 TN 149). He was not entitled to go on and obtain a
summary judgment as if nothing had happened.
come to the respondent's (plaintiff's) second argument. It is that
one about that a summary judgment cannot be rescinded and
can only be
removed by way of appeal. This means according to the argument that
the provisions of Rule 27(6) and Rule 45 are not
judgments obtained by way of application for summary judgment. These
rules concern variation and rescission of judgments,
counsel sought support for his argument from the cases of Slabbert vs
Volskas Ltd 1985 (T) and Verrijct vs Horegded
Tractors and Implements
(Pty) Ltd 1981 (1) SA 787 (T) and Arend and Another vs Astra
Furnishers (Pty) Ltd 1973(1) 849, I am unable
to accept that these
cases assist the Respondent in his argument. I have not therefore
been persuaded that the operation of Rule
45 (1) and 45(4) may be
excluded by reason that a summary judgment can only be removed by way
of an appeal.
I have to
exercise my discretion in this application which is fraught with
errors cross-crossing every angle and steps taken by
herein. I have earlier commented on, the cause of
problems. I have to make the following order by way of allowing the
application and conducing to the justice of the matter.
plaintiff's summons and declaration shall be allowed to stand as if
the prayer One (1) "An order declaring the dismissal
plaintiff by defendant as wrongful and unlawful." is still
existing and inserted in the summons and declaration,
elect to abandon the prayer.
defendant's notice of entry of appearance to defend shall be allowed
defendant's request for further particulars to plaintiff's summon is
removed and set aside.
defendant's notice in terms of Rule 30(1) is removed and set aside.
application for summary judgment is removed and set aside. This
writ of execution.
defendant shall plead and if he so desires except and file any
objection within seven days. In the event that the Defendant
he shall plead over.
Applicant/Defendant shall pay costs of the application including
court's and Deputy Sheriff's fees.
Order for return of the. attached and removed goods of defendant is
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