CIV/A/5/83

IN THE HIGH COURT OF LESOTHO

In the Appeal of

PHAMOTSE MAKHETHA Applellant

and

LEEPILE MOLELEKOA Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai
on
the 7th day of March. 1986.

Respondent and Appellant were respectively Plaintiff and
Defendant before the Local Court of Mafeteng where Plaintiff sued the
Defendant
for one head of cattle or M120-00 as his payment for
herding Defendant's animals for a period of 3 years.

The trial court decided the case against the Defendant
who was unhappy with the decision against which he lodged an appeal
to the
Central Court of Ramokoatsi. The Central Court dismissed the
appeal and the Defendant further appealed to the Judicial
Commissioner's
Court which also dismissed the appeal The Defendant
has now appealed to the High Court on a certificate granted by the
Judicial
Commissioner.

The questions of law reserved by the learned Judicial
Commissioner are whether the Defendant was not given sufficient
notice of the
date of hearing by Mafeteng Local Court in terms of
Rule 33(b) of Government Notice No. 21 of 1961 and whether even
though he had
failed to comply with Rules 39 and 40 of Government
Notice No. 21 of 1961 Defendant could be held to have acted legally.

The facts were briefly that after Plaintiff had
insti­tuted a civil action against the Defendant on 3rd December,
1979, the court
clerk of Mafeteng Local Court issued summons in which
he advised the parties in accordance with the pro-

-2-

visions of Rule 33(a) of Government Notice No. 21 of
1961, that their case had been set down for hearing on 13th
December, 1979. The summons was, however personally served on the
Defendant
in Maseru only on 11th December, 1979. The Defen­dant
then posted a letter dated 12th December, 1979 to the Court President
advising
him that he was taking a journey to Botswana and would not
be able to attend court on 13th December, 1979. The case should,
therefore,
be postponed to a later date. That letter reached the
Court President only on 19th December, 1979- On 13th December, 1979,
the case
was, however, outcrowded and the hearing postponed in open
court to 20th December, 1979. The Defendant was not in attendance on
that
day and the hearing proceeded in his absence.

The only evidence heard by the court on 20th December,
1979 was that of the Plaintiff who told the court that he and the
Defendant
had agreed that he would look after Defendant's cattle for
3 years in return for one head of cattle or R120.00. Plaintiff did
look
after Defendant's cattle for 3 years at the end of which period
Defendant took away his cattle in the absence of the Plaintiff and
without paying anything. Conse­quently Plaintiff demanded payment
but Defendant refused/ neglected to do so Hence this action.

Plaintiff's evidence that Defendant was to pay him one
head of cattle and he did not do so was confirmed by P1W.1 Mojela
Raleting.
As has been pointed out earlier, the trial court proceeded
with the case in the absence of Defendant and entered judgment
against
him It was in fact a judgment by default granted in terms of
the provisions of Government Notice No 21 of 1961 of
which Rule 44(1) provides

"subject to the provisions of Sub-rules (2) and
(3), any Plaintiff or Defendant who after proper notice of the time
and date
set down for the hearing of case fails without reasonable
excuse to attend the court to prosecute or defend his case may, at
the
discretion of the court have a default judgment with costs
entered against him."

Now, the question that immediately arises is whether or
not there was a proper notice of the time and date set

3/down

-3-

down for hearing. It was not disputed that the Defendant
was served with summons which is a process by which parties in the
Local
and Central Courts are advised. inter alia, of
the time and date set down for the hearing of their case. Whether
that was a proper notification of the time and a date set down
for
hearing falls, in my view, to be governed by the provisions of Rule
33 of Government Notice No 21 of 1961. The Rule reads as
follows, in part

"33. On receiving payment of all prescribed fees
of court, or on being satisfied that such fees have been waived by
the court
in accordance with Rule 117, a clerk of court shall

1. 
   set down a date for the hearing
   of the case.

   
   

2. 
   in setting down the date for the
   case to be heard,
   allow sufficient
   time to enable all parties to at­
   tend
   the court "

   
   

In the present case the process (summons) by which the
clerk of court notified Defendant that his case was set down for
hearing on
13th December, 1979 was issued on 3rd December, 1979 i.e.
an allowance of 10 days for the Defendant and his witnesses to attend
court.
If it were borne in mind that Defendant's home is within the
District of Mateteng, it cannot seriously be argued that in setting
down the date for the hearing of the case the clerk of court did not,
in accordance with the provisions of Rule 33 above, allow suf­ficient
time to enable Defendant to attend court. That, in my view, disposes
of the first question of law reserved by the learned Judicial
Commissioner.

It is, however, to be observed that although the summons
was issued on 3rd December, 1979, the Defendant could not be found at
his
home in Mafeteng and he was served only on 11th December, 1979 in
Maseru. He had, therefore, the allowance of only two days to enable
him to attend court. I think the court was entitled to take judicial
notice that the journey from Maseru to Mafeteng was just a few
hours
by public transport so that if he were served with the summons on
11th December, 1979, the Defendant could have easily been
in

4/ Mafeteng

-4-

Mafeteng on 13th December, 1979. It may well be that
Defendant needed more days to contact his witnesses (if any). That
was, however
not a sound reason why the Defen­dant should not
have personally attended court on 13th December, 1979 and obtained a
postponement
in accordance with the provisions of Rules 39 and 40 of
Government Notice 21 of 1961. Indeed, reading from his grounds
of appeal against the decision of the trial court, it is obvious that
Defendant failed to
attend the hearing of his case at Mafeteng Local
Court not because there was insufficient time to enable him to attend
the court
on 13th December, 1979, but because he was preparing to
take a journey to Botswana.

It is trite law that when a person is summoned to appear
before a court of law he must put aside all other businesses and
attend the
court. Defendant's failure to attend court on 13th
December, 1979 on the pretext that he was preparing to take a journey
to Botswana
was a deliberate contempt of court in consequence of
which he failed to hear on 13th December, 1979 that his case was
outcrowded
and the hearing postponed to 20th December, 1979. That
being so, he was in default and the court had a discretion to
proceed, as
it did, under the provisions of Rule 44(1) of Government
Notice No. 21 of 1961.

It follows from the foregoing that the view that I take
is that the second question reserved by the Judicial Commissioner
viz. whether
even though he had failed to comply with Rules 39 and 40
of Government Notice No. 21 of 1961, Defendant could be held
to have acted legally must be answered in the negative.

Consequently, I come to the conclusion that there are no
good reasons to disturb the decisions of both the Central and the
Judicial
Commissioner's courts. I would, therefore, dismiss this
appeal with costs.

B.K. MOLAI

JUDGE

7th March,1986.

For Appellant Mr. Matsau,
For
Respondent In person.