CIV/APN/258/85 CIV/APN/233/85

IN THE HIGH COURT OF LESOTHO
In the
Application of

^'MATHAKENG KHOSI Applicant

v.

MARY 'MAMOTHIBI KHOSI Respondent

JUDGMENT

Delivered by the Hon Mr. Justice J.L Kheola
on the
28th day of April, 1986

The applicant is applying for rescission of a default
judgment in CIV/APN/123/85 granted on the 19th August, 1985 . He is
also applying
for a stay of execution pending the finalisation of
this application

The sequence of events leading up to the granting of the
default judgment may be summarized as follows -

1. 
   On the 10th June, 1985 the applicant was served with
   a
   Notice of Motion in CIV/APN/123/85,

   
   

2. 
   On the 18th June, 1985 a Notice of Intention to
   oppose
   was served on the respondent's attorneys from
   Messrs.
   Mohaleroe, Sello & Co.,

   
   

3. 
   On the 5th August, 1985 the applicant and Mr. Pitso
   for
   the respondent appeared before the Court. The
   applicant was
   carrying his file and he applied for

   
   

a postponement to enable him to get another attorney as
Mr. Sello had filed a notice of withdrawal on the 30th June, 1985,

(d) In the presence of Mr. Pitso and the applicant
Cotran,
C.J., granted the application and gave the applicant
time
to find another attorney. The matter was postponed
to the 19th
August, 1985,

/{e) On ...

-2-

(e) On the 19th August, 1985 the applicant was not
before Court after his name was called three times around the Court
premises and
a default judgment was granted as prayed.

In an application for rescission of a default judgment
the appli­cant must satisfy the following requirements

1. 
   he must explain to the court's satisfaction the
   reasons
   for the default,

   
   

2. 
   he must persuade the court that the application is
   not
   made simply to delay plaintiff's claim,

   
   

3. 
   he must show a bona fide defence (see Mosonngoa
   Matsoso v.
   Alice Selebeleng, CIV/APN/285/83
   (unreported),Rabby
   Ramdaries v. Khadebe Mafaesa,
   CIV/T/56/83 (unreported),
   Taiwan Construction v. Lesotho
   National Insurance Co.,
   CIV/APN/101/83 (unreported).

   
   

In his affidavit the applicant does not give any reason
why he failed to appear on the 19th August, 1985. He was present on
the 8th
August, 1985 when the matter was postponed to the 19th
August, 1985. Even if on the 19th he had not yet found another
attorney it
was his duty to come to court and explain his
difficulties. All what he says in his affidavit is,

"as I live far from Maseru, the fact of my
attorney's with­drawal reached me late and as a result I failed
to engage another
lawyer timeously to appear on my behalf on the day
CIV/APN/123/85 was heard".

The applicant seems to have forgotten that on the 8th
August, 1985 he already knew that his attorneys had withdrawn. It is
therefore
not true that the notice of withdrawal came to him late. I
have come to the conclusion that the applicant has failed to explain
to
the Court's satisfaction the reasons for the default.

Another fatal defect in this application is that the
applicant has deliberately, but unwisely, avoided to tell the Court
the date
on which he had

/knowledge

-3-

knowledge that a default judgment had been obtained
against him. The date on which he became aware of the judgment is
very important
because Rule 27 (6) (a) of the High Court Rules 1980
provides that an applica­tion for rescission of judgment may be
made within
twenty-one days after the applicant has had knowledge of
such judgment If the applicant fails to tell the Court the date on
which
such judgment came to his notice, the Court is entitled to
assume that he had knowledge of such judgment on the day it was
delivered.
In the instant case I shall assume that the applicant
became aware of the judgment on the 19th August, 1985. If one counts
the number
of days from the 19th August, to the 25th September,1985
one finds thirty two days In the computation of days Saturdays must
be
included as provided in Rule 1 of the High Court Rules 1980. I am
convinced that the application is hopelessly out of time and that
on
this ground alone it has to be dismissed

The applicant has deposed that the immovable property
that was declared executable in CIV/APN/123/85 is his mother's
property and
not his. In that case his mother made an affidavit in
which she deposed that she did not own the immovable property at
Thaba-Tseka.
She said that although the property had been registered
in her own name she had never signed any papers for its registration.
In
her latest affidavit supporting the application for rescission of
judgment she is now saying the immovable property at Thaba-Tseka
is
her own property. She says that she was cheated into making an
affidavit in which she purported to disown her property. For the
purposes of my decision in this matter it will not be necessary for
me to decide whether or not this old lady was cheated. What is
clear
is that she is an unreliable witness. She has also made an
application in CIV/APN/258/85 in which she applies that she should
be
joined as the second respondent in the present application for
rescission of judgment

It was agreed by both counsel that the two applications
be dealt with at the same time. The defences of non-joinder or
misjoinder,
being

/dilatory ....

-4-

dilatory merely, must be taken in initio litis
before issue is joined and cannot be raised for the first time at the
trial or on appeal. Thus, for example, a person cannot intervene
in
the proceedings on the merits and then set up misjoinder (see The
Civil Practice of the Superior Courts in South Africa, third
edition,
page 172). The applicant's son (Thakeng) must have informed his
mother on the 10th June, 1985 when a Notice of Motion was
served on
him or immediately thereafter, that an application was being made to
declare her property executable. She did not take
any action until on
the 19th August, 1985 when a default judgment was granted. Now the
question is whether it is proper for a person
to apply for joinder in
the application for rescission of a judgment in which she was not a
party. It is an unusual procedure but
I do not think that a person
who has proved that he or she has a direct and substantial interest
in the matter should be denied the
right of joinder. It may be that
she became aware of the judgment at the rescission stage.

The present applicant ('Mathakeng) may be described as
an unreliable witness, however, she has attached a Form C which ex
facie is proof of a lawful allocation of the land in question to
her. She may as well have a title deed in her own name
because the respondent deposed that the property was in fact
registered in her (applicant's)
name. It has been submitted that as a
widow whose son was already a major when the land was allocated to
her, that is immaterial
because her son is the heir. This is a matter
which is highly disputable and requires full argument. Oral evidence
must be heard
in order to resolve her claim that she was misled into
making the affidavit in which she purports to disown her property.

I shall exercise my discretion in favour of the
applicant ('Mathakeng) and order as follows

(a) As far as she is concerned the judgment in
CIV/APN/123/85 is rescinded,

/(b) She......

-5-

2. 
   She must file her opposing affidavits within seven
   (7)
   days from the date of this judgment,

   
   

3. 
   Costs shall be costs in the cause.

   
   

With regard to the applicant (Thakeng) the application
is dis­missed with costs to the respondent.

J.L. KHEOLA JUDGE

28th April, 1986.

For Applicants - Mr Mohau
For Respondent - Mr
Maqutu.