CIV/A/13/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

UTHOLETSENG
LISENE APPLICANT

and

LESOTHO
HOUSING AND DEVELOPMENT CORPORATION RESPONDENT

JUDGMENT

Delivered
by the Honourable Mrs Justice A.M. Hlajoane on the 19th January,
2005.

This is
an appeal against the judgment of the Maseru Magistrate's Court
dismissing the rescission Application. From the record of
the
Magistrate's Court it appeared that summons were served on the
Appellant on the 22nd February, 2001, as evidenced by the return
of

2

service.
The claim was for an outstanding balance for purchase of land.

The
Appellant failed to enter any appearance to defend the action, hence
the request for default judgment. Judgment was thus granted
by
default on the 1st March, 2001. There was a rescission Application on
the 9th March, 2001, which was opposed. The opposition
was however
never pursued and a final order of rescission was granted on the 27th
March, 2001. There had also been an attachment
of Appellant's vehicle
on the 9th March, 2001 which attachment was frustrated by the final
order of rescission that was granted.

The
papers before me show that the Appellant filed his plea on the 28th
March, 2001 following the rescission order. A request for
further
particulars followed on the 2nd April, 2001 and the particulars were
furnished on the 19th July, 2001.

The
Appellant's defence had been that he had paid in full. By way of
request for further particulars the Appellant had been requested
to
produce proof of payment as alleged, and in response to that he
showed that such proof would be a matter for discovery. Following

that, the Appellant was then requested to discover in terms of the
Rules, Rule 23 (1) of the High Court Rules. He objected to production

of such documents claiming that such documents were privileged.

3

The
record from the Magistrate shows that when asked to furnish further
particulars and later to discover, Applications to compel
had to be
made in order for the Appellant to comply.

The
Appellant has advanced the following as his grounds of Appeal, that:

- The magistrate erred and or misdirected herself in law in holding
that the negligent of the Appellant's counsel could in the

circumstances amount to wilful default on the part of the Appellant.

-" The magistrate errered and or misdirected herself in law in
holding that no bona fide defence was made in plea filed of
record.

The
Appellant was asked and further compelled to discover as he had
claimed to have paid in full. His response was that such documents

were privileged. But again in motivation of his Application in the
second recission Application, Appellant says he was not in total

default of payment but that Respondent had not reflected a clear
picture of the money due. Appellant further showed in his replying

affidavit that he could not have been expected to have kept the
receipts for more than

4

five
years.

In IDM vs
Tsotsi 1990 - '94 LAC 498 it was said that, "An order to strike
out a litigant's defence is an extreme one which
must be resorted to
only where the litigant in question has deliberately and
contemptuously disobeyed the Court's order."
In our present
case, Appellant had been requested to discover and had even been
compelled to discover but never complied instead
he came up with
different stories for con-compliance with that order. So that his
conduct amounted to a deliberate refusal to comply
with the order for
discovery.

As if
that was not enough, notices of set down were issued and served on
the Appellant but he failed to honour any of them. That
was the
reason why the Court granted default judgment for the second time. On
the last ocassion that judgment was granted by default,
Appellant is
saying the fault was with his counsel who failed to appear because he
was engaged before the High Court. This clearly
showed that, the
Appellant was quite aware of the date of hearing as counsel was
acting under instructions but chose to ignore
it. I am saying this
because the Court could safely take a judicial notice that Court work
at the High Court starts at 9,30 a.m,
whilst the Courts at
Magistrate's Court start at 8.00 a.m. This means therefore that
Appellant's counsel could have started at
the Magistrate Court and
come to the High Court later. The

5

explanation
for failure to attend court was perfectly unreasonable Marisela v
Kgolane No. 2000 (2) S.A. 370.

For an
Application for rescission to succeed, reasonable explanation has to
be given why judgment had to be rescinded. It had been
clear to the
Appellant himself that counsel was not acting in his best interest.
This called for him to have kept a proper track
of what was happening
with his case. He had been represented by four counsel at different
stages of his case. There have been two
rescission Applications.
There have also been threats of removal of Appellant's property.
Surely Appellant's behaviour displayed
a clear picture of a delaying
tactic.

The
question of whether or not it was appropriate to make client bear the
consequences of the fault of his counsel is not to be
considered in
isolation or in a vacuum. The explanation given for failure to attend
Court, whether good or bad or indifferent,
had to be considered in
the light of the nature of the defence. De Witts Auto Body Repairs
(Pty) Ltd v Fedgen Insurance Co Ltd
1994 (4) S.A 705.

Appellant
had said he had paid in full. Under request for further particulars
he had claimed that what he was requested to furnish
under further
particulars was a matter for discovery. But when asked to discover he
claimed privilege. In some instances he showed
he was not

6

in total
default of payment as Respondent had not reflected a clear picture of
the money due. Also in reply he said he could not
have been expected
to have kept the receipts for more than five years. Why come up with
so many stories if he had a bona fide defence.

The
Appellant distinguished this case from Pillay v Krishna 1946 AD 946
in that he considers that the burden had shifted on the
Respondent as
there had been delivery of the lease documents by the Respondent and
there had also been occupation of the land in
question by the
Appellant. The question of proof of payment had been overtaken by
events as there could have been no delivery of
documents and
occupation without payment. But it has been the Appellant who claimed
to have paid and ought to have proved that.
We have to go in stages
and not jump to proving that lease and occupation had been
erroneously granted.

Appellant
is saying, even if it was the Appellant himself who failed to attend
Court, the Court in the exercise of its discretion
would still
consider allowing the rescission Application. The Court has thus
considered in the exercise of its discretion not to
allow the
rescission.

The
Appellant has thus failed to satisfy the requirements of a rescission
Application and failed also to show any satisfactory bona
fide
defence.

7

The
Appeal therefore fails, and is dismissed with costs to the
Respondent.

1. M.
   HLAJOANE

   
   

JUDGE

For
Applicant: Mr Matooane

For
Respondent: Mr Chobokoane