CIV/A/21/86

IN THE HIGH COURT OF LESOTHO

In the Appeal of :

'MAMOTHE NTLHASINYE Appellant

and

'MAPEO MAKARA Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
30th day of April, 1987.

This is an appeal against the judgment of the Senior
Resident Magistrate of Maseru dismissing an application for rescision
of the
judgment, stay of execution and costs of the application.

The appeal is based on a long list of grounds which may,
however, be summed up in that in dismissing the applica-tion as he
did, the
trial magistrate erred in law.

The Respondent and the Appellant were,
respectively,
Plaintiff and Defendant in the court a quo.
They were both
represented by Counsels.

It is common cause that on 16th January, 1985,
the
Respondent duly assisted by her husband filed, with the
clerk
of the court in Maseru,summons commencing an action in
which
she sued the appellant also duly assisted by her husband
for
damages in the amounts of (a) Ml,000 for assault, (b)
M1,000-00
for injuria, plus (c) costs of suit and/or (d)
alternative
relief. The appellant intimated her intention to
defend the
action and filed her plea.

The hearing commenced on 10th June, 1985 and two
witnesses testified in support of the Respondent's case. Several
post-ponments then
followed and eventually the matter came for
hearing again on 18th November, 1985.

2/ It is significant

- 2 -

It is significant to note that on that day, 18th
November, 1985, the record of proceedings reveals the trial
magistrate having recorded
the following at page 17 :

"Mr. Masoabi rang this morning 18-11-85 to the
effect that he and Mr. Mphutlane agreed that this matter proceeds in
the afternoon.
On 18-11-85 only Plaintiff and her lawyer, Mr.
Mphutlane before court at 2.56 p.m. Mr. Mphutlane informs court that
Mr. Masoabi intimated
to him that he had a trial in the High Court in
the matter of Mapota Masupha and Pioneer Motors. Mr. Mphutlane rang
Mr. Masoabi's
office about 2.05 and was told by Mr. Masoabi's
secretary that he would be delayed. Around 2.30 when Mr. Mphutlane
rang again he
was told that Mr. Masoabi had just left office for
court. After another 25 or so minutes on scouring around all court
premises, including
the High Court, Mr. Mphutlane found no sign of
Mr. Masoabi where­upon Mr. Mphutlane moved that the matter be
proceeded with.
No sign of Mr. Masoabi's client. Court granted his
plea. Court orderly ordered to call defendant's name three times
around court
room and reports that defen­dant is not there."

In the absence of Mr. Masoabi, court proceeded to hear
the third witness for the Respondent who then closed her case. After
Mr. Mphutlane
had addressed the Court, judgment was entered in favour
of the Respondent who was awarded damages in the amounts of M750 for
assault
and M850 for injuria plus costs.

On 21st January, 1986, the appellant who was then
represented by Mr. Maqutu and no longer Mr. Masoabi filed with the
clerk of the
magistrate court in Maseru an application in which she
moved the court for an order to rescind the judg­ment, stay
execution
plus costs. The grounds on which the appellant based her
application were in effect that she only came to know of the judgment
on
14th January, 1985 (It should in fact read 14th January, 1986),
she had a bona fide defence, Mr. Masoabi did not advice her
that the hearing was to con­tinue on 18th November, 1985 and she
was, therefore, not
in wilful default. The application was
streneously opposed by the Respondent who maintained that the
Appellant and/or her lawyer
were in wilful default and the
application for rescision was rightly refused.

3/ As has ...

- 3 -

As has been pointed out earlier, the Appellant was in
the court a quo represented by counsel, Mr. Masoabi.

The salient question was, therefore, whether or not Mr.
Masoabi for the appellant was in wilful default. On the record of
proceedings
there can be no doubt that Mr. Masoabi knew very well
that the case was set down for the 18th November, 1985 when the
hearing would
continue in the afternoon. He none­theless decided
to absent himself for no given explanation. Whatever excuse the
appellant
may now advance as the reason for Mr. Masoabi's
non-attendance on 18th November, 1985 seems to me an inadmissible
hearsay evidence
for Mr. Masoabi himself never filed any affidavit to
explain his rather contemptuous disregard of the court and the rights
of the
Respondent.

As De Villiers, J.P. once put it in De Beer v.
Dippenaar 1922 O.P.D. 196 at p.197:

"When a, person knows very well that the case is
set down for a certain day, and offers no excuse which is accepted by
the magistrate,
then it seems to me that there is wilful default."

I entirely agree. That being so, I come to the
conclusion that in the circumstances of the present case, the
question whether or not
Mr. Masoabi, for the appellant, was in wilful
default must be answered in the affirmative. On that reason alone,
the trial magistrate
was perfectly empowered to refuse to rescind the
judgment - See Rule 2 of Order No. XXVIII of the Subordinate Court
Rules P.648 of
the Laws of Basutoland (1960 Ed.) Vol.1. His decision
in that regard cannot, therefore, be faulted.

It has been argued that the appellant did not, in her
founding affidavit, state that she had been assisted by her husband
to bring
the application for rescision and the appli­cation
should on that ground fail. It must, however, be observed that the
proceedings
for rescision were incidental to the main action for
damages. The summons in the main action clearly stated, and this was,
indeed,
confirmed in the flea, that the appellant was sued duly
assisted by her husband. Whether in the circumstances it was still
necessary
to repeat this averment

4/ in the incidental

4

in the incidental proceedings for rescision, I am not so
sure. I, however, consider it unnecessary to decide this point now as
I have
already taken the view that the application for rescision
could properly be dismissed on the ground of wilful default.

From the forgoing, it is obvious that the view that I
take is that this appeal ought not to succeed and it is accordingly
dismissed
with costs.

B.K.MOLAI
JUDGE

30th April. 1987.

For Appellant : Mr. Nchee

For Respondent : Mr. Mphutlane.