CIV/A/6/86

IN THE HIGH COURT OF LESOTHO
In the Appeal of
:

ELLA-DENISE MARIE GANDOLFO Appellant

V
PHAKISO LEBOMA Respondent

JUDGMENT

Delibered by the Hon. Acting Mr. Justice D. Levy on
the 4th day of August, 1986.

Plaintiff (now Respondent in this appeal) sues Defendant
(now Appellant) in the Subordinate Court, Maseru, for ejectment from
a house
alleged to be the property of the Plaintiff which Plaintiff
let to the Defendant at a rental of M650 per month. The Plaintiff
alleged
that several months' rent were in arrears and that he became
entitled to cancel the tenancy which he duly did.

Defendant's plea amounts to a denial that she is in
arrears with her rent and she filed a counterclaim for payment of an
amount of
M5,700.55 allegedly arising out of a partnership between
her and the Plaintiff. On the face of the plea there appears to be
no connection
whatsoever between this claim and the counterclaim. No
particulars were sought of Defendant's denial that she was in arrears
her
rent or of the means by which such rent was paid by the
Defendant. In the result the dispute

/between

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between the parties remained confined to the question
whether the Defendant was, or was not, in arrears with her rent
entitling the
Plaintiff to cancel the lease.

An application for the stay of the action on the grounds
that the counterclaim exceeded the Court's jurisdiction was dismissed
with
costs. Since the counterclaim, on the pleadings as they stand,
plays no part in the plea to Plaintiff's claim, section 30 of the
Subordinate Court's Proclamation is not of application and the
application was rightly dismissed.

Notice of set down of the trial of the action was given
on 19th August 1985 for 23rd August 1985 when an objection to the
obviously
short notice was dismissed with costs for reasons which I
find difficult to understand. In the result however, the action was
postponed
to 30th August 1985 to meet the convenience of Defendant's
counsel and Defendant was ordered to pay the costs of the
postponement.

On 30th August 1985, there was no appearance for the
Plaintiff, and Defendant's attorney moved for an order postponing the
action
sine die on the grounds of an irregular set down with
costs to Defendant, alternatively dismissing Plaintiff's claim
with costs on the grounds of Plaintiff being in default.

The Magistrate refused Defendant's application for
dismissal and postponed the case sine die with wasted costs to
the Defendant to enable. Plaintiff to prepare another,Notice of Set
Down.

On 30th August 1985, Plaintiff served on Defendant- a -

/Notice

-3-

Notice dated 19th August 1985 setting the matter down
for hearing at 8.30 a.m. on 6th September 1985.

On that day the Magistrate recorded that at 8.35 a.m.,
there being no appearance for the Defendant, he heard the evidence of
Plaintiff
and granted judgment for Plaintiff ejectment and costs.

Thereafter an urgent application was made ex parte by
the Defendant on 11th September 1985 for rescission of the judgment
obtained on 6th September 1985. A Rule was issued operating
as a
temporary interdict against eviction on the strength of affidavits
filed by Defendant's attorneys on her behalf which indicate
that
Defendant's attorney arrived at Court at 8 40 a.m. "to object to
the Notice of Set Down" so he says. After some attempt
by him to
find the file, he went to the Court room where the matter was to have
been heard. At the door of the Court room he met
Plaintiff's
attorney emerging therefrom who informed him that judgment had
already been granted. Plaintiff's attorney was then asked
to agree to
a rescission on the ground that the Notice of Set Down once again was
not in order and this request was refused. The
Rule that had been
issued was discharged by the Magistrate on the 11th September 1985 on
the grounds that there had been non-compliance
with the Rules of
Court requiring Defendant to provide security for costs awarded in
the judgment rescission of which was sought
and on the further ground
that Defendant had failed to show that she had a bona fide
defence to the action. This appeal is against that order.

/SECURITY

-4-SECURITY FOR COSTS

Order XXVIII of the Rules of the Subordinate Court
provides in Rule 3.3 that such application shall not be set down for
hearing until
the applicant has paid into Court the amount of the
costs awarded against him under the judgment. Such costs as had been
awarded
to Plaintiff had not yet been taxed by Plaintiff and the
Defendant paid into Court as security en amount assessed by the Clerk
of
the Court as being the probable amount at which Plaintiff's bill
of costs would eventually be taxed.

It is right in my view that the Clerk of the Court
should not be called upon to assess the likely amount of Plaintiff's
costs, and
to pay such assessed amount into Court is a non-compliance
with the requirements of the Rule which require the amount of
Plaintiff's
costs, i.e. taxed costs, to be paid into Court. But this
does not mean that the remedy of an application for rescission is
barred
to the Defendant until Plaintiff at his leisure choses to tax
his bill of costs by which time the order for ejectment will long ago
have been carried into effect. In my view, the proper procedure on
this point alone would have been for the Magistrate to have confirmed
the Rule ordering a stay of execution until such time as the

Plaintiff had taxed his costs and the Defendant given an
opportunity of paying that amount into Court. This

would oblige the Plaintiff to tax forthwith or agree on
a suitable amount to be paid into Court by Defendant. It would also
remove
a serious lacuna in the Rules of Court. Authority to follow
this course flows from Order XXXIII Rule 1 which debars the entry of
Judgment on the

/grounds

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grounds of failure to comply with the Rules and which
authorised the Court to order compliance with the Rule within a
stated time,

A BONA FIDE DEFENCE

The Defendant has nowhere indicated the nature of her
defence to the action in the affidavits filed by her or on her behalf
and the
Magistrate found that this amounted to a failure to show good
cause as required by Order XXVIII Rule 2(1),

This Rule is made applicable to all proceedings for

rescission of judgment in terms of Section 21 of
Subordinate Courts Proclamation 58 of 1938. A similar

provision in the Magistrate's Court Act in South Africa,
i.e. Section 36 of Act 32 of 1944 of South Africa, has always been
regarded
as conferring jurisdiction to rescind a judgment granted in
the absence of a party at the trial. See Meer Leather Works Co. v
African Sole and Leather Works (Pty) Limited 1948 (1) SA
321 (T).

What amounts to good cause has always been a matter of
some difficulty but the requirement generally has been regarded as
necessitating
the filing of an affidavit on the merits showing that
the Defendant has at least a prima facie defence to the
action.

No such affidavit has been filed and the Defendant's
attorney indicated to Plaintiff's attorney that he intended to rely
only on the
ground that the Notice of Set Down amounted to short
notice in terms of Order XXXIII of Rule 3(2) which requires a party
reinstating
a trial which has been postponed to set the action down
for further

/hearing

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hearing on a day not earlier than 7 days after delivery
of such Notice.

The Magistrate did not deal with this criticism of the
Notice of Set Down, but since it was to be the only

point to be argued by Defendant's attorney on the 6th
September 1985, a decision on this point would have been decisive of
the whole
matter as I find it is of this appeal* and I turn now to a
consideration of this question.

WAS THE NOTICE OF 30TH AUGUST 1985 SHORT NOTICE?

This Notice was served on 30th August 1985 as a notice
of reinstatement for 6th September 1985. Including 30th August 1985
and including
Sunday, the 6th September was the 8th day after 30th
August.. Applying the provisions of Section 49(1) (a) of the
Interpretation
Act 1977 which excludes the day on which the event
happens, the date of Set Down was not earlier than 7 days after
delivery of the
Notice. Section 49(1) (c) directs that Sunday shall
not count only when the time allowed does not exceed 6 days. It is
therefore
of no application in case.

Section 50 of the Interpretation Act also enjoins that
when the days are expressed to be "clear days" or when the
term "at
least" is used, both the first day and the last
shall be excluded.

It was argued on behalf of Appellant that section 50
should be read to contain the phrase "or some such similar term"
after
the words "at least" It was argued accordingly that
the phrase "not earlier than" as contained in Order XXXIII
Rule 3(2) is such a similar term.

/However,

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However, section 50 is clear and decisive in its terms.
The indulgence extended by it in excluding the first day as well as
the last
day in computing time is limited in its application to cases
where only the two phrases stated are used. If the legislature had
wished
to include all similar phrases, then no doubt it would have
done so in appropriate language and I find no justification for
reading
into section 50 something which is not there and which is not
required to be there to make sense of the section or to give it
efficacy.
Indeed no good ground has been advanced to justify an
interpretation by the Court of a phrase into this section which would
extend
it far beyond its present scope.

I find therefore that service of the Notice of Set

Down was not a short service and that the point which
Defendant's attorney came to argue that day had to fail.

Judgment was properly entered by the Magistrate for
eviction and costs and the interdict was properly discharged with
costs.

The appeal is dismissed with costs.

D.S. LEVY ACTING JUDGE.

4th August, 1986.

For Appellant : Mr, Redelinghuys For Respondent : Mr,
Pheko.