CIV/T/30/233

IN THE HIGH COURT OF LESOTHO

In the matter of .

RAMOLATSA MAKHETHA Applicant

v
MONYANE 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 favour
of the
respondent on the 29th August, 1983
in CIV/T/36/83 be rescinded
because it was
obtained in contravention of the Rules of Court.

Alternatively :

2. 
   That the proceedings leading to the granting
   of the
   default judgment be set aside as being
   irregular proceedings
   according to Rule 30 of
   the Rules of Court.

   
   

3. 
   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 ...

-2-

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 ...

-3-

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 ...

-4-

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