CIV/T/30/233
IN THE HIGH COURT OF LESOTHO
In the matter of .
RAMOLATSA MAKHETHA Applicant
vMONYANE MAKHETHA Respondent
REASONS FOR JUDGMENT
Delivered by the Hon Acting Judge Mr. Justice J.L. Kheola on the 23rd day of September, 1983
This is an application for an order in the following terms:-
1. That the default judgment granted in favourof the respondent on the 29th August, 1983in CIV/T/36/83 be rescinded because it wasobtained in contravention of the Rules of Court.
Alternatively :
That the proceedings leading to the grantingof the default judgment be set aside as beingirregular proceedings according to Rule 30 ofthe Rules of Court.
That execution in the matter be stayed and
the vehicle D 0906 be returned to the applicant pending the outcome in CIV/T/36/83.
4. That respondent pay the costs on an attorney and client scale.
At the hearing of this application Mr. Kolisang submitted that the default judgment was irregularly obtained because the respondent failed to comply with Rule 27(3) of the High Court Rules. The summons was
/served ...
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served upon the applicant on the 19th February, 1983. On the 21st February, 1983 he entered a Notice of Appearance to defend. On the 15th August, 1983 a Notice to File plea was served on him but he took no action until the 23rd August, 1983 when he was barred from delivering his plea in terms of Rule 27(3) which reads as follows:-
(3) Whenever the defendant is in default of entry of appearance or is barred from delivery of a plea, the plaintiff may set the action down for application for judgment. When the defendant is in default of entry of appearance no notice to him of the application for judgment shall be necessary but when he is barred from delivery of a plea not less than three days notice shall be given to him of the date of hearing of the application for judgment. (My underlining)
It is common cause that the notice of set down for the hearing of the application for judgment was not served on the applicant. He was entitled to a notice of not less than three days as required by Rule 27(3). The respondent ignored the provisions of this Rule and proceeded as if the applicant had not entered notice of appearance to defend. This Court has on several occasions stated that the Rules of Court are meant to be stricly adhered to and that the discretion is in the hands of the Court. (See Mc/ntyre & Van Per Post v. Malunga Earth Moving CIV/T/441/82 (unreported).
On this ground alone I think the application for the rescission of the default judgment granted on the 29th August, 1983 must be granted because the judgment was obtained not in accordance with the Rules of Court.
/Mr. Masoabi ...
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Mr. Masoabi referred me to a number of cases of this Court in which it was held that applicant must show good cause and that he has a bona fide defence. He referred me to CIV/T/207/81 Musiyambiri v. Molapo, Nketse v. Santam Bank and 2 others CIV/APN/89/82, Khiba v. L.E.C. 1980(2) L.L.R. 392 and Rabby Ramdaries t/a. Rabby Ramdaries v Khadebe Mafaesa CIV/T/56/83 (unreported). All these judgments can be distinguished from the present judgment in that they were obtained in accordance with the Rules of Court. The first two cases were concerned with Rule 27(6)(b), that a party applying for a rescission of judgment must pay security of costs. In the present case this subrule was complied with to the satisfaction of the Registrar. The remaining cases were concerned with Rule 27 (6) (c), that the applicant must show good cause why he is in default. A bona fide defence must also be shown.
In his founding affidavit the applicant says that the respondent is his employee and that he has documents to show that he is the owner of the vehicle in dispute because he bought it from Harolds Volkswagen. This allegation is denied by the respondent in his opposing affidavit. Both parties have not attached any ownership documents to support their claims. For this reason I concluded that this point could not be resolved by affidavits alone but it would be a waste of time to resort to Rule 8(14) of the High Court Rules because the judgment was obtained in contravention of the Rules of Court.
Applicant has also stated that he was in default because there were negotiations going on to consolidate his claim with respondent's claim. In CIV/T/3/83
applicant is claiming restoration to him by the defendant
/of a vehicle ...
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of a vehicle Reg. No.D.1446 and payment of R5,150 as damages. The respondent again denies that there were any negotiations on consolidation of the two claims. But one wonders why it took the respondent so long before he served the applicant with a notice to file plea. The summons was served on the applicant on 19th February, 1983. Notice to file plea is dated the 12th August, 1983. It is most probable that during that period of six months negotiations to consolidate the claims were still going on.
The application is granted as prayed in prayers 1, 3 and 4.
ACTING JUDGE 23rd September, 1983
For the Applicant : Mr. Kolisang For the Respondent : Mr. Masoabi