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of default judgment must, at the hearing of the application thereof show good cause why such judgment should be rescinded.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