IN THE HIGH COURT OF LESOTHO
In the Application of :
MAKALO KHIBA Applicant
LESOTHO ELECTRICITY CORPORATION Respondent
Delivered by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 14th day of October, 1980
This is an application to rescind a Judgment entered against the applicant Khiba.
On the 7th March 1979 the applicant was convicted (CRI/T/60/78) in the High Court before Rooney J on two counts of theft of money totalling about M112,000 the property of his employers, Lesotho Electricity Corporation, (hereinafter referred to as the corporation) now the respondents. His appeal to the Lesotho Court of Appeal (C. of A. (CRI) No. 2 of 1979) was dismissed.
On the 16th July 1979, the corporation sued the applicant (CIV/T/166/79) and in their declaration they stated that whilst they have been able to recover some of the money stolen (the applicant failed to clear the proceeds of the second forged cheque) they have not been able to recover M56,489 (the proceeds of the first forged cheque), They asked for Judgment in this sum.
The applicant, who was served with the summons and declaration on the 24th September 1979, briefed Mr.attorney Kolisang, who, on the 27th September 1979 duly entered an appearance to defend. On the 11th October 1979 Mr.Kolisang requested further particulars from attorneys of the corporation. On the 13th November 1979, attorneys for the corporation called the applicant to plead within 48 hours and when he failed to do so set down the case for 3rd December 1979 for a default Judgment. Rooney J took the motion roll. There is a minute
entered by him as follows :-
By consent struck off the roll". (Signed) F.X. Rooney
The reason for this, most probably, was because the corporation's attorneys had not yet furnished the particulars requested by Mr. Kolisang. These particulars Were finally supplied on 10th March 1980. On the 21st April 1980 the corporation's attorneys called upon the applicant to plead within 24 hours. Again no plea was filed either timeously or at all. On the 29th April 1980 the corporation's attorneys set down the case to obtain a default Judgment on the 5th May 1980. On that day Mr. Kolisang for the applicant and Mr.Franken for the corporation appeared before Mofokeng J. The Judge's entry reads as follows :
"Mr. Kolisang informs the Court that defendant (i.e. applicant) has withdrawn his opposition to the action. Order: Judgment is granted in favour of the plaintiff as prayed in the papers".
(Signed) M.P. Mofokeng
The corporation oppose this application to rescind the Judgment and Mr. Franken who appeared on their behalf argued that that was a consent Judgment. On the 5th May 1980 when both attorneys appeared before the Judge, no plea In defence had been filed and the applicant had already been barred from pleading. No request was made to the Judge for the bar to be lifted in order to give further time to the applicant to plead. He had ample time to do so from 24th September 1979 to 29th April 1980. The particulars the attorney requested were not in fact really necessary to enable him to plead. The Judgment given was probably a hybrid between Judgment by consent and Judgment in default of plea. I do not think however that in the particular circumstances of this case, the terminology matters.
The special power of attorney given by the applicant to Mr. Kolisang is in the usual form and the following words appear at the end before the applicant's signature:
"And to prosecute the matter to its final end and determination and generally for effecting the purposes as aforesaid, to do or cause to be done whatsoever shall be requisite as fully and effectually for all intents and purposes as I might or could do if personally was present and
acting therein, hereby ratifying, allowing and confirming and promising and whatsoever my said attorney and agent shall lawfully do or cause to be done".
There is no doubt whatsoever that these words authorise the attorney to consent to Judgment, the general rule being that a litigant is bound by what is done by his representative (Broome JP in R. v. Muruven 1953 (3) S.A. 779 at 780, and Wepener v. Frasers Lesotho Ltd CIV/APN/101/76 dated 19th July 1976 - unreported).
Relief, however, may be granted if it can be established that there was irregularity in the consent Judgment or that the attorney has given his consent to Judgment, not in the exercise of his authority and discretion as an attorney, but because he mistakenly believes that his client has given him instruction to give such consent. (De Vos v. Calitz & De Villiers 1916 CPD 465 at 470).
Messrs. Webber & Newdigate on behalf of the applicant launched this application on the 14th August 1980 for "extension" and for "rescission" of the Judgment of the 5th May 1980. In his founding affidavit the applicant averred that he came to know that a Judgment was entered against him only on 3rd July 1980 and that he had at no stage instructed his attorney (Mr. Kolisangat the time) to withdraw his defence to the action (paras 3 and 6). The truth of the matter of course is, as I indicated earlier, that on 5th May 1980 there was no plea before Mofokeng J, there was no application to lift the bar, no application to extend time for plea, and therefore no defence to withdraw. Be that as it may the 14th August 1980 was the last day of the time limit imposed by the proviso to Rule 23(1) of the High Court Rules which reads as follows :
"Provided that if the defendant applies to Court on Notice of Motion within six weeks after he has knowledge of such Judgment it may be set aside by the Court and leave given to the defendant to defend upon sufficient cause shown and upon such terms as to costs or otherwise as to the Court may seem meet".
I told the applicant's new attorneys that I cannot really understand what the applicant wants, but I am prepared to treat the application as one for rescission of the Judgment of the 5th May 1980 on the ground that applicant did not authorise his attorney to consent to Judgment and on the further ground that
he has a good defence to the action of the corporation. An adjournment was granted for further affidavits to be filed.
At the adjourned hearing the applicant had got rid of his second set of attorneys and conducted his case in person. Mr. Kolisang had in the meantime filed an affidavit, in reply-to the applicant's,in which he averred that he had in fact been instructed by him not to proceed with the matter and he informed the Court accordingly.
To understand what is at stake, it is necessary, unfortunately, to go back to the criminal trial before Rooney J, earlier referred to, which was confirmed on appeal. A resume of the Judge's findings are at pages 2 and 3 of the Court of Appeal Judgment and is as follows :
That the appellant(i.e. the applicant) stole the
cheque which formed the subject of counts 6 and 7
from his employer (i.e. the corporation).
That he opened an account in the name of Sons
Construction at Barclays National Bank Ficksburg
and deposited the cheque which was made out for
the sum of R56,489.00 to the credit of this account.
That this cheque, ostensibly made out by the Lesotho
Electricity Corporation and drawn on Lesotho Bank,
was forged after it was stolen.
That when the cheque was deposited Barclays Bank
was instructed to have it specially cleared.
That this was done, the Lesotho Bank accepted it
as a valid cheque, the Lesotho Electricity
Corporation was debited with R56,489, and Barclays
Bank was credited therewith.
That the appellant then drew two cheques made
payable to cash in the sums of £32,610.55 and
R22,840.27 respectively on the account of Sons
Construction at Barclays Ficksburg and appropriated
the proceeds thereof for his own purposes.
It emerged at the trial that shortly after the theft was discovered and the applicant arrested that R2,514.74 in cash were found in his house (later Rooney J, in his wisdom, allowed the applicant to keep these), that he had purchased a Mazda truck, that he had also bought jewellery, and that he deposited in cash R19,100 in two financial institutions in Bloemfontein in the Orange Free State. The applicant was on a good but modest salary, but had, a month or two previously, obtained a loan of R2000 from a bank to build a house. Rooney J had found, and the Court of Appeal agreed, that apart from the direct evidence against the applicant, the above mentioned unexplained sudden wealth, was
circumstantial evidence implicating him with the theft.
The applicant has some assets. The corporation did not take action over his assets in Lesotho, but obtained a rule nisi from the Supreme Court of the Orange Free State attaching the cash he had deposited in the financial institutions at Bloemfontein. The corporation then lodged the civil action in Lesotho in which Mr. Kolisang was briefed by the applicant to defend him.
It is clear that Mr. Kolisang, after entering an appearance to defend, did not remain idle, and he tried to elecit from the applicant the line of his defence. Mr, Kolisang avers in Clause 5 of his affidavit that the applicant had told him that a Mr. Abdool Rashid, whose whereabouts were unknown, had advanced him the sum of R46,000. This Was merely an assertion which the applicant was unable to substantiate by any other evidence. Mr. Kolisang called for and perused the record of the criminal proceedings and advised the applicant that he has no prospects of success and that he will involve himself in unnecessary expenditure if he persisted. Mr. Kolisang avers that the applicant agreed with this assessment and instructed him not to proceed with the matter any more and he so informed the Judge on the 5th May.
I have not the slightest doubt in my mind that Mr.Kolisang is telling me the truth and that there was no question of his misunderstanding the applicant's instructions. He has acted in the best interests of his client and also, if I may say so, in accord with the highest traditions of the side bar. If he had not received those instructions Mr. Kolisang would have asked Mofokeng J to lift the bar and requested further indulgence to file a plea. That Mr. Kolisang had the applicant's specific consent to this course can be discerned from a letter the applicant wrote to his attorney on the 20th May 1980 as follows :
Dear Mr. Kolisang,
Following our last discussions and tentative agreement I communicated the same to Mr. Abdool Rashid, my financier and co-partner. As a matter of extreme urgency, the communication in response, which I have just received from him is to the effect that:
(1) He vehemently opposes our tentative agreement;
(2) Sums of the size in question cannot and should
not be confiscated without the authority of the
relevant's Court order;
Bank documents were seized from me before he could
take out an appropriate insurance policy, and
should he agree to the seizure of the money in
question, he will never be able to recoup the same;
With this communication, you are requested to advise
the plaintiff to proceed with the litigation;
You should rest assured that all documents involved
in the transactions will be handed to you in due
Makalo Khiba Mr. Kolisang replied as follows :
Mr. M. Khiba,
MASERU. 20th June, 1980.
Dear Mr. Khiba,
Your letter of 20th May has been drawn to my attention.
I am afraid I am now incapable of doing as you request because in accordance with the conversation we had in prison, I formally withdraw your defence before the Court. I cannot now go back to court and say I and you were not serious about the withdrawal of the defence.
Why did Abdool delay for so long from September 1979 to May 1980?
Yours faithfully, G.M. Kolisang
The "consent" to Judgment with his former attorney is now distorted into a "tentative agreement" to negotiate with the corporation's attorneys to settle the matter amicably. It is clear from Franken's affidavit (para 6) that Mr. Kolisang had in fact faithfully carried out the applicant's instructions on this matter but these negotiations proved abortive. The applicant knew this since he admits that his last interview
with his attorney took place "in the last week of April", (para 10 of applicant's supplementary affidavit), i.e. a few days before the hearing of the 5th May 1980.
It is encumbent for an applicant seeking rescission of a Judgment granted in default of appearance or in default of plea to show good cause and prove that he at no time renounced his defence and that he had a serious intention of proceeding with
the case (Van Aswegen v. MacDonald Foreman & Co. Ltd 1963(3) S.A. 197). Furthermore he must place before the Court sufficient evidence from which it can be inferred that he has a bona fide defence to the action. A bare assertion of good faith is not enough (Ngcezulla v. Stead 1912 EDL 110). In his founding affidavit dated 14th August 1980 the applicant puts his defence as follows :
I verily believe that I have a good defence to the action instituted against me by respondent under CIV/T/166/79. I further verily believe that respondent intends relying on the Criminal case where I was convicted inter alia, of stealing the present amount claimed by respondent from me in the civil case whose judgment I intend applying to this Court to set aside and grant me leave to defend.
I will show to the Court that Criminal Case was
not handled to my satisfaction in that my then
legal representative concentrated on the defence
of lack of jurisdiction by the Court and on that
basis the available evidence of myself and my
witnesses was not led to rebut allegations of
theft against me. This evidence will be available
if the Court grants me leave to defend the Civil
WHEREFORE I pray this Honourable Court to grant me the relief prayed for in the Notice of Motion.".
In two other supplementary affidavits the applicant elaborates on his "defence" thus :
It is a fact that I instructed Mr. Kolisang on the line of defence in the said case and asked him to communicate the same to the Plaintiff's attorneys.
It is further true that during one of his (Mr. Kolisang) visit to the Central Prison, he impressed upon me the fact that from what he could deduce from the record of criminal proceedings and also the appeal case, it appeared to him that the civil case would bear heavily against me.
He further impressed upon me that the plaintiff was particularly keen to seize money in the South African financial institutions, though this money was short of the total money claimed.
It is a fact that considering his opinion, I instructed him to consult with the plaintiff's attorney about the possible settlement or compromise while I at the same time will inform the financier about his opinion of the case.
It is a fact that concerning the defence, there is evidence to prove that he had never been to Ficksburg on the alleged dates; the "memo" had absolutely nothing to do with the forged cheque and finally that evidence would be led regarding the source of suspicious funds which are banked with the South African financial institutions.
It is a fact that one of the main reasons why the trial court convicted the defendant was that he led no evidence in rebuttal of the allegations made against him by the crown witnesses nor gave any explanation of the suspicious circumstances.
It is a fact that the above situation resulted from the advice by the defence counsel that the trial court had no jurisdiction to decide in the case before it and as such the defendant had no obligation to give evidence and that same argument was pursued by the defence counsel up to the appeal court where it was still rejected.
All this is extremely vague but one can read between the lines that his "defence" will be that his conviction for theft was not in order and that the money in the two financial institutions belong to, or were lent to him by,a third party. The conviction has been upheld by the highest Court in the land and cannot now be questioned, and he failed to make out any case that the money belongs to a third party. On the contrary, on balance of probabilities of the papers before me, the money deposited by him soon after the theft form part of the proceeds of the stolen cheque. The applicant has no defence to the action. If there is a bona fide third party he would surely have emerged by now; and in any event, if Abdool Rashid is not a fictitious person, he could still object when execution proceeding ensue in the Courts of South Africa.
I think the applicant is one of those brazen thieves who is seeking, not justice, but more time to find someone of his ilk prepared to cooperate with him in perpetrating a further swindle on his former employers to deprive them from recovering whatever remains of what he had looted.
The application is completely misconceived and is hereby
dismissed. The applicant will pay costs on attorney and client
For Applicant: Messrs. Webber,Newdigate 14th October, 1980.
& Co., and later in person.
For Respondent: Messrs. E.G. Cooper & Sons
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