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 bothrepresented by Counsels.
It is common cause that on 16th January, 1985, theRespondent duly assisted by her husband filed, with the clerkof the court in Maseru,summons commencing an action in whichshe sued the appellant also duly assisted by her husband fordamages in the amounts of (a) Ml,000 for assault, (b) M1,000-00for injuria, plus (c) costs of suit and/or (d) alternativerelief. The appellant intimated her intention to defend theaction 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
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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 ...
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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.