HIGH COURT OF LESOTHO
WAGON LESOTHO (Pty) LTD. PLAINTIFF
BY THE HONOURABLE MRS JUSTICE KJ. GUNI ON THE 25th AUGUST, 2005.
The objective of setting aside the default judgment?
When the case is reopened, parties must be given a fair and proper
hearing of their cases.
The party should not be penalized where it is established that a
genuine error occurred.
COURT RULES -33 and 53
Court has discretionary powers bestowed upon it by these Rules, to
condon any non-compliance with the HIGH COURT RULES
matter, the summons were issued out of this court, by the plaintiff
on the 7th November, 2001. The plaintiff is suing the
the payment of the sum of M38,102.69 plus interest at the rate of
18.5% per annum from the date of the issue of this
summons plus costs
declaration, at paragraph 4 it is alleged that in terms of the sale
agreement between the parties the plaintiff sold goods
defendant for an amount of M13,220.92. This purchase price was to be
paid no later than 30th September, 1994 together with
interest at the
rate of 18.5% per annum. At the date of the issue of the summons i.e.
the 7th November 2001, that debt had grown
to the tune of M38,102.69
and still growing at the rate of 18.5% until the date of payment.
Presently it has approximately trebled.
In law, is there a stage when
the growth of the debt should stop? IMF and the World Bank are
accused of impoverishing the poorest
of their poor borrowers by
charging interest rates that make it impossible to ever finish paying
their debts. This plaintiff to
me is behaving like those
plea is a total denial of indebtedness to the plaintiff as described
in paragraphs 4,5 and 6 of the declaration. While
there was an agreement between the parties, for the supply of goods
by plaintiff to the defendant, it was a further
terms of the said
agreement that the defendant was to return the unsold goods to the
rider caused such confusion and added such complications to this
simply matter, which as a result, there emerged such a wrangling
went on from 1994 up to the present date. The culmination of such
unnecessary wrangling is an application by the plaintiff
to have the
defendants defence struck out -exposing the defendant to be liable to
pay to plaintiff an amount of M38,102.69 plus
amount as appears from the plaintiff's own papers is grossly
unjustified if and only if there could be a proven indebtedness
amount of M13,222.92 by defendant to the plaintiff. The defendant
further denies completely that she is indebted to the plaintiff
any amount, [refer to paragraph 3 -Defendant's plea] This total
denial of indebtedness by the defendant is not a new phenomenon
if the defendant is allowed to amend her plea to just a bare denial
will not prejudice the plaintiff in any way.
denial adds no further nor additional burden to the plaintiff to
prove the defendants indebtedness to it. The defendant in paragraph
of her plea, is explaining further terms of the agreement between the
parties. She is not, as I understand the expression, stating
actually took place between the parties.
JUDGMENT AND WRIT EXECUTION
27th April, 2004 a default judgment was entered in favour of the
plaintiff in the sum claimed i.e. M38,102.69 plus interest
rate of 18.5% per annum and costs. On the 14th June, 2004, the Writ
of Execution, directing the sheriff to attach and take
the movable goods of the defendant and to cause to be realized by
public auction the sum of M38,102.69 together
with interest thereon
at the rate of 18.5% per annum starting calculations from the 25th
February, 2001. It is no longer claimed
from the date of the issue of
the summons - 7th November 2001.
calculations are to commence even before the summons were issued
despite the growth of the debt from M13, 220.92 to M38,102.69
30th September, 1994 to the date on which the summons were filed with
this court, which is the 7th November, 2001.
the calculations of interests in the writ of execution commenced from
the 25th February 2001? In the summons there is a
(11) that asks for the granting of interest at the rate of 18.5% per
annum, from the date of the issue of the summons.
Why in the writ
does the plaintiff commence the calculation of interest before that
date? There are no explanations for these obvious
EX-PARTE APPLICATION FOR STAY OF EXECUTION
An Ex-parte application for stay of execution pending rescission in
terms of RULE 45 OF THE HIGH COURT RULES 1980, was filed with
court on the 8thJuly, 2004. The rule nisi was issued in the following
rule nisi do hereby issue calling upon the Respondents herein to show
cause if any, why:-
ordinary periods of notice and modes of service shall not be
dispensed with due to the urgency of the matter.
of the order granted by default on the 27th April 2004 shall not be
stayed pending the finalization hereof.
order granted by default on the 27th April 2004 shall not be
rescinded, corrected and/or set aside.
Applicant herein shall not be granted leave to defend the main
action in CIV/T/236/01.
no abjection in writing as so mads, the party receiving such notice
shall be deemed a have agreed to the amendment
If any objection be made within the said period, th.5 party wishing
to amend, shall within seven days of the receipt of such
apply to court, on notice to all other parties that he will apply to
court for leave to amend. (b) Such notice shall
state the date when
the application will be heard which date must be not less than ten
days from the date on which the notice
is given. The applicant shall
at the same time set down the matter for hearing on such date.
the court has ordered an amendment or no objection has been made
within the time specified in sub-rule (2), the party
deliver the pleading or document as amended within the time
specified in the court's order or within seven days
of the expiry of
the time prescribed in sub-rule (2) as the case may be.
an amended pleading has been delivered in terms of this rule, the
other party shall be entitled to plead there to or to amend
consequentially any pleading already filed by him within fourteen
days of the receipt of the amended pleading or within such
the court may have ordered, if such be the case.
party giving notice of amendment shall unless the court otherwise
order, be liable to pay the costs thereby occasioned to any
an amendment is made by leave of the court in an application made
under sub-rule (4) the court on granting leave may attach
conditions as to costs, or to further proceedings in the matter or
such other conditions as it deems just
in this Rule shall be deemed to prevent an party applying to the
trial court during the trial for an amendment of any
document, at any time before judgment and the court on such
application may grant or refuse the amendment and if
granting it may
make such order as to costs or adjournment or both, or otherwise as
it thinks fit. (My underlining to highlight
the salient points]
plaintiff, on receipt of the Notice from the defendant to amend her
plea, promptly within the period set out in the rules indicated
writing, that such an application to amend the defendant's plea will
be or is opposed.
not the end of the matter. But to the defendant and her counsel
nothing further was done. Why? It seems they could not
find their way
out of or through the legal maze created by RULE 33.
received an objection to amend the plea, the defendant still had an
option to give further notice to all the parties, that
she will now
apply to court for leave to amend. [RULE 33 (4) HIGH COURT RULES
(Supra)]. She did not do that within the period provided
for by this
rule. According to the plaintiff the defendant is presently
time-barred. There is therefore a need to apply to court
condonation to take the necessary steps to lift the time-bar. The
application for condonation for late filing or the filing
out of time
of the application to amend the plea, has not been placed before this
court. Can the court mero motu condon the delay
to file and prosecute
the application to amend the plea?
particular RULE 33 is very long and complicated. It consists of many
provisions. It must be read carefully by a totally alert
legal practitioner, otherwise one gets lost along the way. SUB-RULES
(2) and (4) (a) set out specific periods within
which any party
desirous of taking any steps to amend or object should do so.
SUB-RULE (9) on the contrary seems to extend those
which the party may take steps to seek to amend the pleadings or
documents. This rule stretches the period as far
as any time before
judgment. Therefore this rule generally speaking seems to embody a
great flexibility within itself.
deal is made of the defendant's failure to comply with this rule. The
"rules, as the Honourable LEHOHLA J (as he
then was) said, "are
made for this court and not the court for the rules. "LESOTHO
AGRICULTURAL DEVELOPMENT BANK VS.
JUSTICE THABO MOKOTSO CIV/T/57/90
[unreported]. The rules are meant to guide the courts in their
practice. The rules are not to
be interpreted in such a way that they
force the courts to commit the absurdities or even injustices. The
rules are mere tools
of convenience for the use of the courts. In the
case of LESOTHO NATIONAL INSURANCE COMPANY (Pty) LTD. VS SOOTHO
[Unreported] Honourable MOLAI J granted the
application for leave to amend. Reliance was placed on the High
powers bestowed on it by RULE 59 - HIGH COURT
"Notwithstanding anything contained in these Rules the court
shall always have discretion, if it considers it to be in the
interests of justice, to condone any proceedings in which the
provisions of these rules are not followed", [my underlining]
The inevitable conclusion is therefore, there is no permanent and
immovable time bar. The court has powers at all times to extend
periods within which the party is allowed to act.
application to amend is opposed by the plaintiff on the grounds that
the plaintiff company will be prejudice. How? There is
silence on how the plaintiff will be prejudiced. Be that as it may.
same RULE 33, there is a provision which takes care of such
situations where prejudice may result from the amended pleadings.
SUB-RULE (6) makes a specific provision that "when amended
pleading has been delivered in terms of this RULE 33, the other
shall be entitled to plead thereto or to amend consequently any
pleadings filed by him", [my underlining] Therefore
there can be
no prejudice to anyone party resulting from the granting of the
application to amend the pleadings, in terms of this
RULE 33. The
court is obliged to afford the other party an opportunity to react
appropriately to a new situation. Therefore there
is no likely
prejudice when the case is re-opened after the setting aside of the
default judgment. When the case re-opens, the
parties must be given a
fair and proper hearing of their cases. The main objective sought by
the applicant in the application which
set aside the default
judgment, was the opportunity to be heard before the judgment could
OF THE COURT
related to the question of prejudice is the question of costs. There
is always a chance that the court may provide relief
by an award of
costs for any prejudice likely to be suffered or actually suffered
when an amended pleading is allowed. If an award
of costs is not
going to provide the relief the onus is on the plaintiff to show the
court why that is his or her case.
plaintiff has not only failed to show this court why and how the
granting of an application to amend the pleading will prejudice
but does not dispute that an award of costs, if considered
appropriate, will compensate it adequately. SUB-RULE (8) gives the
court powers to make an order of costs when it provides that "if
an amendment is made by leave of the court in an application
under SUB-RULE (4) the court on granting leave may attach such
conditions as to costs or to further proceedings in the matter
such conditions as it deems fit", [my underlining]
purpose of the granting of the application for stay of execution and
the setting aside of the default judgment, was to
afford the parties
an opportunity to actually put their cases before the court in a
the party should not be penalized where it is established that a
genuine error occurred. In the absence of the application
condonation for non-compliance with some of the HIGH COURT RULES, the
court has the discretionary powers bestowed on it by
the same rules,
in particular RULE 59 HIGH COURT RULES [supra] to condon the failure
by the defendant.
CIRCUMSTANCES, THIS APPLICATION TO AMEND THE DEFENDANTS PLEA MUST
SUCCEED. IT IS THEREFORE ALLOWED WITH COSTS.
plaintiff is entitled, if it wishes, to amend any subsequent
pleadings when the amended plea is delivered. The plaintiff is
entitled to re-plicate in terms of the rules.
defendant is allowed to file an amendment to her plea.
is entitled to file amendments to any pleadings already filed.
may replicate in terms of the rules.
is awarded the costs of today's hearing.
Plaintiff : Mr. S. Malebanye
Defendant : Mr. H. Nathane
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