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

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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.

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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

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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

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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

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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.

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

1. M. HLAJOANE

JUDGE

For Applicant: Mr Matooane

For Respondent: Mr Chobokoane