CIV/APN/205/94

CIV/T/148/94

IN THE
HIGH COURT OP LESOTHO

In the
matters of;

I.C.I.
LES (PTY) LTD Applicant

vs

K. T.
GOOSEN Respondent

and

K. T.
GOOSEN Plaintiff

vs

T.C.I.
LESOTHO (PROPRIETARY) LIMITED Defendant

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 27th day of July.
1994

In this
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
1994,

1. That
   the Deputy Sheriff (Mr. D. Mandipaka) be joined as the 2nd
   Respondent.

   
   

2. That
   the writ of Execution in the case . number CIV/T/145/94 (the action)
   be stayed

   
   

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pending the, finalization of the application. In the meantime the
Applicant/Defendant's goods removed on the strength of the writ
(on
the 27th June 1994) be refunded and be restored to the premises of
the Applicant/Defendant/i

3. That
   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
   fees.

   
   

3. That
   the prayer for rescission of judgment shall be dealt with in the
   ordinary way on the return date.
   

   
   

3. That
   the prayers (a) (b) (c) above shall operate with immediate effect,

   
   

3. That
   the return date be fixed for the day of the 30th June 1994 at 9.30,

   
   

On the
30th June 1994 the matter was argued by Mr. Hlaoli for Applicant and
Mr. Mare for Defendants, Judgment was to follow. I had
to be
satisfied that the orders had been complied with, and

3

that the
parties would broach settlement of this complicated matters as I had
encouraged them to do. The latter aspect was most
unsuccessful.

I have
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
fairness.

On the
6th April, 1994 the Plaintiff filed his summons in the action, which
was not accompanied by a declaration (see Rule 21),
The following
were the claims contained in the summons:

1. An
   Order declaring the dismissal of Plaintiff by Defendant as wrongful
   and unlawful;

   
   

2. Payment
   of the sum of M27,015.00 being in respect of salaries due to the
   Plaintiff by Defendant but notwithstanding demand, Defendant
   has
   failed and/or neglected to pay

   
   

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the aforesaid sum;

3. Interest
   at the rate of 18.25 per annum a temporal morae;

   
   

3. Costs
   of. suit;

   
   

3. Further
   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)
the
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
follows:

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"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
taken
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.

On the
13th June 1994 the matter having been enrolled, the matter was
postponed to the following Monday the 20th June, 1994 by my
brother
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:

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Plaintiff
has suffered damages in the sum of M27.015.00 being in respect of
salaries due to plaintiff by defendant in lieu of notice.

Wherefore
plaintiff prays for judgment against defendant for:

1. payment
   of the sum of (M27,015.00. .

   
   

2. Interest
   at the rate of 18.25%.

   
   

3. Costs
   of suit,

   
   

4. Further
   and/or alternative relief."

   
   

It is
important to note the following things:

1. The
   prayers in the declaration differed with those in the summons in
   that the prayer (1) in the summons had been removed. That
   prayer had
   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

   
   

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matter
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).

2. Without
   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).

   
   

May be
all this can be easily explained when regard is had to the letter of
appointment which was annexed to the papers. The letter
contained
terms and conditions which include monthly salary. But then there
would probably be a dispute as to how and why plaintiff
was
terminated or dismissed.

But, all
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

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the
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;

1. give
   security to the plaintiff to the satisfaction of the Registrar for
   any judgment including such costs which may be given or

   
   

2. Satisfy
   the Court by affidavit or with leave of the Court, by oral evidence
   of himself or of any other person who can swear positively
   to the
   fact that he has a bona fide defence.

   
   

Respondent
has submitted that the application should fail on the following
grounds: That the Applicant has failed to respond properly
to the
application for summary judgment and secondly that a summary judgment
cannot be removed by way of rescission but by a judgment
on appeal
(invalidating the same). Let us investigate the two grounds.

Having
made a broad overview of each step taken by the respective parties it
opportune now to seek to arrive at a

9

solution
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.

Saving
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
judgment on
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

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that the
defendant's notice does not appoint a date and time on which the
application would be made. This seems to be implied in
the words
"within fourteen days" and "apply to court."
There are many interpretations to the word "apply"
but the
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
interpreted
to mean that the application shall be set down on the
roll within a period of fourteen days and not merely that notice of
the application
shall be given within that time. I have not thought
of the distinction or significance of the use of the word "may"
used
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
Uitenhage

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Municipality
vs Uys 1974(3) SA 800 (E).

There is
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
be
entitled to make such application."

Isn't it
the defendant who on the 2nd June, 1994 served the plaintiff with at
request for further particulars? I would hold that
the defendant
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.

Plaintiff
ignored the application under Rule 30(1). A plaintiff's proper cause
where any proceeding in a cause is

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irregular
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.

I now
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
applicable to
judgments obtained by way of application for summary judgment. These
rules concern variation and rescission of judgments,
The respondent's
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
the parties
herein. I have earlier commented on, the cause of

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these
problems. I have to make the following order by way of allowing the
application and conducing to the justice of the matter.

1. The
   plaintiff's summons and declaration shall be allowed to stand as if
   the prayer One (1) "An order declaring the dismissal
   of the
   plaintiff by defendant as wrongful and unlawful." is still
   existing and inserted in the summons and declaration,
   Plaintiff my
   elect to abandon the prayer.

   
   

2. The
   defendant's notice of entry of appearance to defend shall be allowed
   to stand,

   
   

3. The
   defendant's request for further particulars to plaintiff's summon is
   removed and set aside.

   
   

4. The
   defendant's notice in terms of Rule 30(1) is removed and set aside.

   
   

5. Plaintiff's
   application for summary judgment is removed and set aside. This
   include the

   
   

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writ of execution.

6. The
   defendant shall plead and if he so desires except and file any
   objection within seven days. In the event that the Defendant
   excepts
   he shall plead over.

   
   

6. The
   Applicant/Defendant shall pay costs of the application including
   court's and Deputy Sheriff's fees.

   
   

6. The
   Order for return of the. attached and removed goods of defendant is
   confirmed.

   
   

T.
MONAPATHI

JUDGE

27th
July, 1994