CIV/APN/36/04
IN THE HIGH COURT OF LESOTHO
In the matter between:
Moeko Abner Thamae Applicant
And
Lesotho Bank 1st Respondent
Mamotsepe Motsepe 2nd Respondent
JUDGMENT
Delivered by the Honourable Ms Acting Justice N. Majara on the 14th October 2004
Applicant herein approached the court on an urgent basis for an order in the following terms:
A rule nisi be issued returnable on a date and time to be determined by the court calling upon respondents to show cause, if any, why the following order shall not be made final:
Execution of judgment granted by default in CIV/T/323/01 on the 3rd March 2003 be stayed pending finalization of this matter;
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Judgment in the main action be rescinded and applicant be granted leave to defend the main action;
Respondents be ordered to pay the costs hereof in the event of opposing this application;
Further and/or alternative relief.
Prayers 1 and 2 (a) of the notice of motion be ordered to operate with immediate effect as interim orders.
This application comes as a result of a court order which was granted against applicants (respondents) in the main application on the 3rd March 2003. On the 26th January 2004, Ms Ramodibedi, counsel for applicant was granted an interim order in terms of prayers 1 and 2 (a) in the notice of motion. The rule was made returnable on the 9th February 2004. On the 9th February, the rule was extended to the 23rd February 2004 and this went on and on until the 2nd August 2004 when Ms Ramodibedi counsel for applicant and Ms Qhobela, counsel for respondents appeared before me and by consent the matter was postponed to the 5th August 2004 for hearing.
On the said date of hearing, when the matter was due to be argued, I was not able to proceed with it due to circumstances beyond my control and on the 6th August 2004 the rule was duly revived and extended to the 16th August for hearing. The
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matter was finally duly argued before me on the 23rd August 2004.
Before Ms Ramodibedi argued the merits of the application, Ms Qhobela raised and argued a point in limine and informed the court that the other point which had also been raised in limine had since fallen away having been overtaken by events in that applicant had since paid security.
Respondents' only point in limine therefore was that applicant in casu was time barred because he was supposed to have brought the application for rescission within 21 days of receiving notice of the court order as per Rule 27 (6) (a) of the High Court Rules. She argued that the application was only brought in January 2004 and yet judgment had been granted against applicant in casu in March 2003. She submitted that proof of applicant having been in full knowledge of the judgment was a supporting affidavit which had been filed by one Thabo Maputsoe who stated therein at paragraph 3 that on or about the 4th September 2003, he served a letter of eviction upon the applicant herein and that the latter did not sign the said letter.
In response to this argument, Ms Ramodibedi submitted that applicant swears on oath that he was never served with any
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summons and that he never received the letter as is alleged by-respondents. She went further to state that applicant first got to know of the judgement when 2nd respondent approached him and informed him that she had since bought the site.
Applicant's counsel argued further that even if applicant had delayed in bringing in the application, Rule 59 of the High Court Rules gave the court the discretion to condone the late filing in the interests of justice.
On the merits of the Case, Ms Ramodibedi argued that when moving an application for rescission, applicant has to satisfy two conditions viz, that he was not in wilful default and that the has a bona fide defence. In addition, applicant's contention is that he has made out a fit case for the order sought.
Applicant was basing his case on the fact that as he avers, he never received any summons and that respondent's reliance on the return of service which is not even in the courts file does not hold any water because it is non-existent.
On the issue of a bona fide defence, applicant contended that it is not necessary that he shows prospects of success or probability of success on the merits as long as he shows the
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existence of an issue fit for trial or demonstrates that he has a prima facie case.
Applicant's Counsel argued further that the onus to show that he was in wilful default rests on respondent and that in the event of there existing any doubt whether the default was wilful or not, the court should allow rescission because the object of the rules is to allow the merits to be investigated wherever possible.
Ms Qhobela, counsel for respondent, contended that with respect to bona fide defence, applicant has attached numerous deposit slips, most of which are not even legible, as proof of only part payment of the debt not payment in full. She submitted that applicant ought to have attached documentation proving that he had paid the debt in full, such as a bank statement depicting a zero balance, on his account. Counsel for respondent submitted that although applicant is not bound to give evidence, he should make averments that would entitle him to relief in a trial.
Respondent's Counsel argued further that applicant was in wilful default on the basis that applicant's claim that he was not duly served is not true because of the fact that a return of service had been filed of record and that this is prima facie evidence of service. She argued further that applicant had also
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failed to give reasons why he could not have been served, and as such had not disproved the service.
Ms Qhobela went further to state that in a case where a person takes out a mortgage bond, he waives some of his rights to the land in question and that such a person should apply for a declarator stating that he has special rights, in the event of which he would be entitled to service. In addition, Ms Qhobela argued that apart from being personally served, an advertisement was widely circulated in The Mirror newspaper and in a government gazette. She submitted that because of all these reasons, applicant was in wilful default.
On the point in limine which was raised by Counsel for applicant, viz, that respondent is time barred, Rule 27 (6) (a) of the High Court Rules provides:
"where judgement has been granted against defendant in terms of this rule or where absolution from the instance has been granted to a defendant, the defendant or plaintiff, as the case may be, may within twenty-one days after he has knowledge of such judgement apply to court, on notice to the other party, to set aside such judgement"
In the case at hand, judgement was granted by default against applicant (defendant in the main action) on the 3rd March 2003 and he filed his notice to have the judgement set aside on 21st January, 2004. The application was therefore filed after a period
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of ten (10) months had lapsed. This far exceeds the 21 days period as is prescribed by the Rules.
Applicant's contention was that he was not aware of the judgement until when 2nd respondent claimed that she had bought the site. He went further to state in his Founding Affidavit that he was never aware of any advertisement of a sale of the property in question nor was there any notice of sale in the Courts file.
The issue therefore for determination is whether the court should uphold respondent's point in limine that on the basis of his being time barred, applicant's prayer for rescission should be dismissed.
In deciding this question, I amongst others, perused the courts file whereupon I found amongst the papers filed therein, a return of service signed by one W J Lemena wherein he stated that on the 24th June, 2002, he served defendant personally with the summons. This in my opinion if ex facie proof of service on applicant. He however, denies that he was ever served, and avers that as a result, he was not wilful in his failure to defend his case. Yet the honourable judge who granted the default judgment, did so because she was convinced that applicant had been duly served.
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In addition to the Deputy Sheriffs return of service, there are in the courts file, copies of the Mirror newspaper and the government
gazette wherein sale of the immovable property in question was advertised after judgement was entered against him. As I have already
stated, applicant disputed this fact.
However, in the light of the existence of the above mentioned documentary evidence as well as the supporting affidavit of Maputsoe. I am convinced that applicant was duly served and that he was or at least should have been aware of the advertisement of the sale of his immovable property.
Furthermore, in my humble opinion, the onus was on applicant to disprove service and to demonstrate two things, firstly that reasons did exist which would have made it impossible for him to have been served and secondly that the lapse of the ten (10) months period since the publication of the sale resulting from the court order was attributable to those factors. Thirdly, applicant should have gone a step further to tell the court when exactly it was when he first got to hear or know of the court order against him from the 2nd respondent as he claimed. Instead, all that applicant has simply averred at paragraph 6 of his Founding Affidavit is,
"I respectfully aver that I only came to know that judgement was granted against me when 2nd respondent claimed that she had bought the site..."
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This averment is so vaguely put that I found myself at a loss in trying to determine the actual time when applicant first got to know of the judgment against him. The importance of this information cannot be over-emphasised, especially in the light of the exact wording of Rule 27(6)(a) of the High Court Rules. The rule does not say within twenty one days of judgement but it reads,
"... within twenty one days after he has knowledge of (my underlining) such judgement..."
This means that even if applicant's claim that he was not served with neither the summons nor the writ were to be believed, if he seeks to have the default judgement granted against him by an Honourable Judge of this court, on the basis of that return of service to be set aside, he at least had to satisfy the requirements of Rule 27(6)(a). This was also stated by my brother the Honourable Justice T Monapathi AJ (as he then was) in Posholi v Lekhooana CIV/APN/252/93 (unreported) where he cited with approval the decision in Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd 1977 (2) SA 576 and Roopprarian vs Kalmalapathy 1971 (3) SA 578 respectively.
In the light of these reasons, application in casu has failed to comply with the requirements of Rule 27 (6) (a). Ms Ramodibedi submitted that applicant could not bring the
application before the expiry of this period as he did not
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know that judgement had been taken against him as he was not even served with a writ. I have already addressed this issue above in that, the sale in execution of was advertised in both the Mirror Newspaper and the government gazette and I am not convinced that even if applicant could argue that he personally did not see the advertisement which is a probable story neither did all the people around him and that this was the case for a period of almost ten (10) months.
It is the opinion of this court that applicant is simply trying to delay this matter and yet he had all the opportunity to have presented himself before the court to argue his case.
Ms Ramodibedi further submitted that in applications of his nature, courts are given a wide discretion which will be given upon a proper consideration of all relevant circumstances, as per the provisions of Rule 59.
I agree with this submission. However, in the light of the reasons as stated above, I do not think that it would be in the interest of justice that I should grant the application for rescission in this case when I am not convinced of the reasons advanced. In my view, courts also have a duty to discourage would-be litigants from neglecting cases when they have been afforded ample opportunity to come and
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argue them before the court, only for them to come at a later stage seeking rescission of judgements granted under such circumstances.
I do not think the courts should too readily grant applications for rescission, otherwise there is a danger of judgment creditors
suffering prejudice in that their cases would never reach finality as a matter of fact, or at best, they would take an unreasonably long time. In my opinion therefore, even such a wide discretion should be exercised judiciously.
For the above reasons the point in limine is upheld. This being the case, I did not think it worthy to dwell on the merits of the case.
The application for rescission is refused with costs.
N. MAJARA
ACTING JUDGE
For applicant - Ms Ramodibedi
For respondent - Ms Qhobela
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