IN THE HIGH COURT OF LESOTHO In the
ESSAU KIBA MANDORO Plaintiff/Respondent
LESOTHO EVANGELICAL CHURCH Defendant/Applicant
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 7th day of July, 1989.
This is an application for rescission of a default
judgment which was granted by this Court on the 25th March, 1988 and
stay of execution
of the aforesaid judgment pending determination
of this application.
The history of this case has been a very long one and
during that long period there has been a change of attorneys. The
lodged in the office of the Registrar on the 9th June,
1983. The plaintiff claimed damages for wrongful dismissal. Notice of
to Defend was filed on the 19th July, 1983. A request for
further particulars was made. On 1st November, 1983 further
were supplied. On the 14th September, 1984 the defendant
made a request for further and better particulars. The plaintiff
further and better particulars on the 28th March, 1985.
It seems that Messrs. Masoabi & Co. who originally
appeared for the plaintiff withdrew and Messrs. Ntlhoki & Co.
On the 2nd March, 1988 - almost three years after the
further and better particulars were supplied - the plaintiff filed a
to File Plea in terms of Rule 26 (2) of the High Court Rules
1980. The defendant's attorneys received a copy of Notice to File
on the 2nd March, 1988 but took no steps to comply with it. On
the 23rd March, 1988 the plaintiff's attorneys set down the matter
for hearing on the 25th March, 1988.
I think the Notice of Set Down was irregular in that
Rule 27 (3) provides that not less than three days notice shall be
given to the
defendant of the date of hearing of the application
for judgment. In the computation of the number of days the first day
be excluded while the last day must be included. See Section 50
of the Interpretation Act No. 19 of 1977. I had to resort to the
Interpretation Act because Rule 1 does not provide whether or not the
first day must be included.
The Notice of Set Down was served upon the attorneys of
the defendant but it seems that although a certain Mr. Matlhare
from that office was present within the Court premises on the 25th
March, 1988 he was either unaware that the matter was to be heard
that day or he was in another court when the default judgment was
It is common cause that immediately after the default
judgment was granted plaintiff's attorney met Mr. Matlhare and
informed him that he had obtained a default judgment. Mr. Matlhare
did not do anything about the matter until the 10th May, 1988 when
defendant was served with a writ of execution. By thenMr. Matlhare had left h this country and Mr. Matsau had
left Messrs Mohaleroe, Sello & Co. and was then the new
attorney of the defendant. On the 31st May, 1988 Mr. Matsau
filed the present application for rescission.
Mr. Ntlhoki submitted that the application is out
of time because the defendant's attorney became aware of the default
judgment on the 25th March,
1988. I do not agree with that submission
because the knowledge referred to in Rule 27 (6) (a) is actual
knowledge by the defendant
himself. (Basson v. Bester. 1952
(3) S.A. 578). The defendant had acutal knowledge on the 10th May,
1988 when it was served with a writ of execution and was therefore
within the prescribed period on the 31st May, 1988 when it lodged the
It is trite law when a defendnat appears to have a
judgment set aside he must place before the court sufficient evidence
it can be inferred that he has a bona fide defence
to the action. It is not sufficient for the applicant to content
himself with saying that he has a bona fide defence. It is
sufficient if he sets out averments which, if established at the
trial, would entitle him to the relief asked for.
He is not required
at this stage to deal with the merits of the case or even to produce
evidence that the probabilities are actually
in his favour. (Grant
v. Plumbers (PTY) LTD 1949 (2) S.A. 470; Curlewis v. Visser,
1964 (1) P.H., F5; Nqoko v. Morreira, 1976 L.L.R. 137) .
The defendant's defence is that immediately after the
Court of Appeal judgment on the 23rd April, 1982 which held that the
of the plaintiff as a priest in the defendant's church
was wrongful, it wrote a letter to the plaintiff asking
him to come back to work. He refused to do so. Now the issue before
is whether or not the plaintiff is entiled to his salary
after he declined the offer that he must go back to work.
It is alleged that the plaintiff is now employed full
time at the National Teachers Training College. It seems to me that
it is very
important to decide exactly when the plaintiff left
defendant's employment. He is claiming his salary up to June, 1983
but at that
time he was already working for the National Teachers
Training College and therefore not entitled to earn double salary for
period. He did a good thing by taking up another employment
to mitigate his damages. But he . cannot claim his full salary from
defendant while he was already earning another salary.
I am of the opinion that the defendant has a bona
fide defence; it may be that the defence is not to the whole
claim but to part of it. It is not clear why after the plaintiff
his studies he decided not to return to the defendant.
The mere fact that another priest had been posted at his former
could not be taken as an indication that the defendant
was no longer willing to take him back. The defendant could transfer
I come to the conclusion that the plaintiff has a bona
fide defence and that the application is bona fide and was
not made with the intention of merely delaying the plaintiff's claim.
The applicant/defendant has given a reasonable explanation
default. The blame must be placed squarely on the defendant's
attorneys who failed to file a plea after instructions had been
given to them to do so. I do not think that the
defendant can be blamed for that. There is nothing to show that the
negligent in any way. It was the plaintiff's fault that
after further and better particulars were furnished, he waited for
three years before he started again and filed a Notice to File
The application is granted as prayed. The costs of this
T application shall be costs in the cause.
The applicant/defendant is ordered to file its plea
within twenty-one (21) days from the date of this judgment.
J.L. KHEOLA JUDGE
7th July, 1989.
For Applicant/Defendant - Mr. Matsau For
Respondent/Plaintiff - Mr. Ntlhoki.
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