CIV/T/44/82

IN THE HIGH COURT OF LESOTHO In the Application
of .

MOGGIE & DU TOIT Plaintiff

v
P.P. MAKHOZA Defendant

JUDGMENT

Delivered by the Hon. Mr. Justice M.P. Mofokeng on
the 19th day of January, 1984.

This is an application for rescission of default
judgment against the applicant on the 1Sth day of May 1983.

The applicant deposes that he was advised by counsel
that judgment had been entered against him in default of his
appearance on the
10th day of May 1983. He avers that he was not in
wilful default in as much as his attorneys did not notify him of the
said date
of trial, namely 10th May 1983- He submits that he has
prospects of success in that he does not owe the respondent what it
alleges
(having been paid) except for a sum of M500.00 (Five Hundred
Maloti only), Finally, the applicant avers that if he is allowed to
defend this action, he will approach the court for condonation of his
late filed plea.

The supporting affidavit is by the applicant's attorney.
He says that he did not notify the appellant of the date of trial
neither
did he write to him in that connection and as

/a result

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a result of that omission, on his part, default judgment
was entered against the applicant. He avers that the applicant was
not in
wilful default.

The application is vigorously opposed. It is averred
that the applicant had a duty to keep in contact with his attorney
and to inquire
concerning the progress of the case. However, by not
doing so, he was crossly negligent and had a laisser-faire attitude
towards
the proceedings,, After the plea was filed during June 1982
and also after the pre-trial conference was held on 6th December 1982
he must have known that this matter would be heard subsequently. He
was or must have been aware of the date or was negligent to
enquire.
Applicant has therefore created the position in which he now finds
himself.

It is averred that the applicant does not specifically
say on what date it came to his knowledge that a default judgment had
been
entered against him. It is significant that he signed his
affidavit on the 19th May 1983.

It is further averred that applicant has neglected to
aver good reasons why this application should be granted. It is
submitted that
the applicant's non-attendance at the trial was
deliberate or gross negligence bordering on contempt

It is further averred that the applicant is not
supported by his attorney that he had not been notified of the trial
date, the latter
being vague on this point. On the 10th May 1983 the
proceedings commenced late because applicant's counsel was waiting
his arrival.
Applicant failed to give a reasonable explanation for
his default. It would

/appear

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appear he was grossly negligent and that the court
should not come to his assistance.

It is also averred that applicant's application is not
bp_na fide. He has done everything possible to cause a delay
in the prosecution of the claim in this matter. Hence, there is no
explanation
why he has not paid even the sum of M500.00 (Five Hundred
Maloti only) which he admits, on his own version, that he owes the
respondent.

The defence of the applicant is not bona fide
either, so it is averred, because the version of the respondent is
corroborated by the cheques he received from the applicant some
of
which were dishonoured,,

It is denied that the applicant has any prospects of
success. The handling of the cheques and undertakings as well as the
amount still
outstanding on his version, appears inconsistent with
his allegation., In any event the judgment could not be rescinded
for M500.00
(Five Hundred Maloti only) as he admits is due and
payable.

Since the applicant has still to apply for his plea to
be filed at some future date, if the present application is granted,
there
was therefore no plea before court. The default judgment was
correctly entered.

The supporting affidavit by the applicant's attorney has
been described by the respondent is being unsatisfactory. In it the
attorney
is too earger to put the entire blame for the entry of a
default judgment against the applicant squarely on his shoulders. In
so
doing he has overlooked

/the finer

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the finer details which would have definitely indicated
to the applicant that the date of trial had been determined such as
when the
matter was enrolled and steps he took in the preparation of
the case, including the pre-trial conference. He does not mention, in
his affidavit, what attempts he made to ensure the attendance of the
applicant in Court. During the trial, the court was first given
the
impression that the applicant was nearby. Then there was an
about-turn. He had gone to Johannesburg knowing that he had to be
present in court to answer a claim,, In argument in connection with
this application, Mr. Maqutu stated that the applicant had
gone overseas. This has not been alleged in any of supporting
affidavits to the application In any
event, it is incomprehensible to
this Court that counsel would come to court and listen to evidence in
chief and cross-examine the
same witness without even taking the
court into confidence as to the whereabouts of the defendant if there
were difficulties about
that. However, it was with some sadness that
the court heard attorney for the applicant being reminded that if the
applicant was
aggrieved by what had happened, his remedy lay against
his attorney. It is true.

On the other hand, it is the duty of the applicant to
keep in contact with his attorney(s) and to enquire about the
progress of his
case. If he does not do so, and adopts the
I-don't-care attitude towards the proceedings, he is then grossly
negligent, (See Grant v Plumbers (Pty) Ltd,, 1949(2) S.A. 470
at 476). Moreover, the applicant does not explain to this court what
precisely took place from the time he became
aware of the fact that
default judgment had been entered against him until he filed his
affidavit. There is,

/therefore,

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therefore, no reasonable explanation before the Court
for the applicant's default.

The respondent submits that the applicant has no bona
fide defence. It is his case that he was given cheques by the
applicant some of which were dishonoured. It is not denied by the
applicant
that cheques were given to the respondent. In his plea it
is admitted that at least a cheque for M1,000.00 (A thousand Maloti
only)
was dishonoured. It was replaced by two cheques of
M500.00 (Five Hundred Maloti only). However, one of these was
dishonoured. It is on this basis that it alleged that
only a sum of M500.00 is due and payable to the respondents. But the
goods bought were for
a very far larger amount. In any event, there
is no defence and there can never be any as to why the amount owing
should not be
paid, except to say that it has been paid. There is no
iota of evidence contained in any affidavit either by his Bookkeeper
or Accountant
to support the averment by the applicant to the effect
that he has paid the sum claimed except the alleged M500.00. The
applicant
could attach no receipts. (See Sekhobe Sehahle v
Fedmark (Matatiele) (Pty) Ltd., & Another,
CIV/APN/232/83 dated 19th December, 1983). There is, therefore, no
prima facie defence set out.

The applicant, in the court's view, has not placed
sufficient evidence before it from which it may be inferred that he
has a bona fide defence. Eliciting sympathy from the court in
these circumstances is quite a different matter. The applicant in
this type of application
must show a good cause for default of his
appearance. He has

/failed

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failed to do neither of these things. (Makalo
Khiba v

Lesotho
Electricity Corporation, 1980 (2) LLR. 392) and

the balance of convenience is against allowing
this
application.

The application is, therefore, dismissed with costs.

JUDGE.
19th January, 1984.

For the Plaintiff - Adv. Rubberheimer For the Defendant
- Adv. Gwentshe.