CIV/1/463/82

IN THE HIGH COURT OF LESOTHO
In the
Matter of :

TSELISO MAKUTLE Plaintiff
v

1. 
   LAZARUS NYAI Defendants

   
   

2. MAKALO
   SEMOLI Defendants

   
   

JUDGMENT

Filed by the Hon. Chief Justice, Mr. Justice T.S. Cotran
on the 24th day of February 1984

On 3rd February 1984 I rescinded a Judgment which I had
entered in favour of the plaintiff on 10th June

1983 in default of appearance of the defendants. The
application for rescission was originally opposed but during argument
Mr. Khauoe for the plaintiff conceded that a default judgment
should not, in the circumstances, have been entered.

The claim was one for damages to a vehicle (in the sum
of M2389.35 with interest) arising from a motor collision between the
plaintiff
driving a Hiace Combi Registration No. A 6109, and a truck
Registration No. A 7416 owned by the first defendant and allegedly
driven
by the second defendant in the course of his employment.

It did not occur to plaintiff's counsel, nor, I regret
to say, to the Court itself at the time, that in actions of this
nature some
evidence is required on the matter about the quantum of
damages before a judgment

/is

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is entered in default. Legal research on the subject was
made only In the course of argument and this revealed that evidence
must
be led on or, exceptionally, available in affidavit form before
the Court before judgment is entered.

Rule 27 (5) provides:

Whenever the plaintiff applies for judgment against a
defendant in terms of sub-rule (3) herein, the court may grant
judgment without
hearing evidence where the claim is for a

liquidated debt or a liquidated demand. In

the case of any other claim the court shall hear
evidence before granting judgment, or may make such order as it seems
fit.

In Knight N.O. v Harris (1962 2 S.A, 317) Beadle,
C.J. stated:-

"It Is the duty of the Court in every specific case
to decide whether or not It will exercise Its discretion and dispense
with
hearing of evidence, and this is the way in which I approach the
instant case. Claims for damages arising out of motor accidents
are
by no means simple and straightforward, as complex issues such as
whether or not the plaintiff was himself guilty of contributory
negligence often arise. In the normal course, therefore, I am
inclined to the view that it would be unwise for a Court to dispense
with the hearing of evidence in claims such as this".

(See also Nathan and Barnet ) Uniform Rules of Court 2nd
Edition - Rule 31 - p. 190, and Mafereka v Moo.iane & An,
(CIV/T/178/83 dated 30th December 1983 - unreported).

As intimated earlier the default judgment was rescinded.
The defendants were ordered to file a plea

within
21 days.

/I will

-3-

I will make no order as to costs in this application but
defendant may uplift the security he provided when the application
for rescision
was lodged.

CHIEF JUSTICE
24th February 1984

For Plaintiff : Mr. Khauoe )

with copies of Judgment

For Defendants : Mr. Pheko )