CIV/APN/285/96
IN THE HIGH COURT OF LESOTHO

In the matter between

Martin Tankiso Ntšihlele Applicant

and

Ernest Ntšihlele 1st Respondent

Michael Ntšihlele 2nd Respondent

Bernadette Ntšihlele 3rd
Respondent

Master of the High Court 4th Respondent

Attorney-General 5th Respondent

JUDGMENT

Delivered by the Honourable Mr. Justice M.M. Ramodibedi
on the 9th day of February 1999

This is basically an application for rescission of
default judgment granted against the 1st, 2nd and 3rd Respondents on
the 27th day
of October 1997 and for leave to oppose the main Notice
of Motion instituted by the Applicant dated the 14th July 1997. The
order
sought and obtained by default in that application was in the
following terms:

"(a) Declaring as nul (sic) and void the last will
and testament of the deceased ELIZABETH Ntšihlele dated the 24th
February
1990.

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(b) Declaring that Applicant as the Customary heir to
the estate of the deceased Elizabeth Ntšihlele is entitled to a
greater part
of the deceased's estate.

© The first, second and third Respondent (sic) pay
costs in the event of opposing this application.

(d) Applicant be given further and or alternative
relief."

I should perhaps state at the outset that in terms of
Rule 27 © of the High Court Rules the party applying for rescission
of default
judgment must, at the hearing of the application thereof
show good cause why such judgment should be rescinded. It is salutary
to
note that the Court has a judicial discretion whether or not to
set aside the default judgment.

It is not possible to give a precise and comprehensive
definition of the term "good cause" due to the fact that
many and
various factors require to be considered. In principle
however this Court is in agreement with the principles expressed by
Miller
JA in Chetty Law Society. Transvaal 1985 (D S.A. 756 AD at 765
to the effect that two essential elements of sufficient or good cause
for rescission of a judgment by default are:

(I). That the party seeking relief must present a
reasonable and acceptable explanation for his default; and

(ii) that on the merits such party has a bona fide
defence which, prima facie, carries, carries some prospects of
success.

It is again salutary to note that both requirements as
set out above must

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be met. In this regard it is pertinent to bear in mind
the pronouncement of Miller JA in Chetty v Law Society, Transvaal
(supra) at
765 to the following effect:

" for obvious reasons a party showing no prospects
of

success on the merits will fail in an application for
rescission of a default judgment against him, no matter how
reasonable and convincing
the explanation of his default. And ordered
judicial process would be negated if, on the other hand, a party who
could offer no explanation
of his default other than his disdain of
the Rules was nevertheless permitted to have a judgment against him
rescinded on the ground
that he had reasonable prospects of success
on the merits."

I respectfully agree.

Without doing violence to essential detail the relevant
facts may be briefly collated as follows:-

The late Thabo Alexander Ntšihlele
had married the deceased Elizabeth Ntšihlele in
their lifetime. They begot the Applicant Martin Tankiso Ntšihlele
as the eldest son followed by the third Respondent and then the first
Respondent who in turn was followed by the Second Respondent.
The
late Thabo Alexander died in 1963 while his wife Elizabeth died on
the 30th June 1996.

Before her death and on the 24th February 1990 the
deceased Elizabeth executed a will in terms of which she bequeathed
her estate
to all her children

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including the Applicant mostly "in equal shares."
Applicant's case in the main application however is that he is
entitled
to "a greater part of the deceased's estate."

It is common cause that service of process in the main
application was effected by way of edictal citation. It was therefore
not personal
service. The edictal citation was published in the
Sowetan newspaper but the explanation of 1st, 2nd and 3rd Respondents
is crisply
that they are not regular readers of newspapers. They
further say that they certainly do not read the Sowetan newspaper and
that
they did not see the publication in question. For my part I
observe that there is no evidence gainsaying the Respondents' version
on this issue and consequently I can see no reason why their version
cannot be accepted and I accordingly proceed on the basis of
the
correctness of such version. I do so on the authority of
Plascon-Evans Paints (Pty) Ltd. V Van Riebeeck Paints 1984 (3)SA 623
at 634-635.

Indeed such is the unsatisfactory nature of service by
edictal citation that one can never be sure that the intended service
actually
reached the notice of the defendant/respondent.

It follows from the aforegoing therefore that the 1st,
2nd and 3rd Respondents have presented a reasonable and acceptable
explanation
for their default. Accordingly I find that they were not
in wilful default in failing to oppose the main application.

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Regarding the question of bona fide defence it will be
recalled that the case for the 1st, 2nd and 3rd respondents is that
the late
Elizabeth Ntšihlele executed a will bequeathing her estate
to all her children. They claim therefore that they are entitled to a
share of the deceased's estate.

Mrs. Kotelo for the Applicant has submitted to this
Court that as a widow the deceased Elizabeth Ntšihlele had no
authority to make
a will and that consequently the will relied upon
by the 1st, 2nd and 3rd Respondents is null and void. No authorities
were however
produced for this proposition and my own researches
could not reveal any. As a matter of principle I consider that any
decision or
law that disentitles a widow, who is for that matter not
subject to the customary law, from executing a will would be
discriminatory
on the basis of sex and would therefore be in stark
contravention of the then Section 2(j) of the Human Rights Act 1983
(now Section
18 of the Constitution of Lesotho). Even in cases where
a widow is subject to the customary law of Lesotho, in my judgment, I
consider
that she would be entitled to execute a will provided she
does not deprive the heir of a greater part of the estate.

In paragraph 9 of her affidavit the 3rd Respondent
Bemadette Ntšihlele. makes the following telling points which would
seem to indicate
that the deceased Elizabeth Ntšihlele had abandoned
customary mode of life and had adopted a European way of living:-

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"9

Our parents, the deceased Thabo Alexander Ntšihlele and
our mother Elizabeth Ntšihlele were married by Christian rites. She
went
to work in Garankuwa in 1972. Before 1972 she used to have a
fowl run business. Our mother was a Nursing Sister at Garankuwa
Hospital
and she retired in 1992. She returned to Mapoteng in 1992
and erected a fowl run. She did not start the business due to
ill-health.
She had built for herself a modem house to which she had
out of her own funds reticulated electricity and water. She had also
installed
a telephone in the house. Our mother therefore had
abandoned the customary way of living and had adopted the European
mode of life."

It will indeed be observed that the specific allegation
that the deceased Elizabeth Ntšihlele had abandoned the customary
way of
living and had adopted the European mode of life is
significantly not denied and I accordingly accept the respondents'
version on
this issue.

It follows from the aforegoing therefore that the
deceased Elizabeth Ntšihlele was entitled to execute the will in
question and that
accordingly the respondents have a bona fide
defence to the main application.

In the result therefore the application for rescission
of default judgment is hereby granted with costs to 1st, 2nd and 3rd
Respondents.
The Respondents are granted leave to oppose the main
application.

The other ancillary prayers are deferred to a later date
either on the same papers or on fresh papers as the 1st, 2nd and 3rd
Respondents
may

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deem fit. This is so because this Court was not
addressed fully on the ancillary prayers in question. Arguments
before me were mainly
confined to rescission of default judgment.

M.M. Ramodibedi

JUDGE 9th February 1999

For 1st, 2nd and 3rd Respondents : Mr. Matsau
For
Applicant : Mrs. Kotelo