CIV/APN/427/05
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the Matter Between:-
PUBLIC EYE 1st APPLICANT
BETHUEL THAI 2nd APPLICANT
AND
LEBOHANG THOTANYANA RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 21st December 2005
This is an application for stay of execution and rescission of judgment which was granted by default against applicants herein in CIV/T/436/05. Applicants seek relief in the following terms:-
Dispensing with the normal rules of Court as to form and service on account of urgency;
A Rule Nisi issue returnable on the date and time to be determined by this Honourable Court calling upon the Respondent to show cause (if any) why:
Execution of judgment in CIV/T/436/05 shall not be stayed pending the outcome hereof, if any property has been removed be restored to the Applicant forthwith;
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The judgment in CIV/T/436/05 entered by default against the Applicants herein shall not be rescinded and Applicants granted leave to defend the action;
The Respondents shall not be directed to pay costs hereof only in the event of opposition;
The applicants shall not be granted further and or alternative relief. 3. Prayers 1 and 2 (a) operate with immediate effect as interim orders.
A brief background that brought about this application is that Applicants herein were jointly sued with one Mzimkhulu Sitheto in the main action for damages arising out of an article authored by the latter. On the 8th November 2005 judgment was entered against them by default in the sum of Ml.5m (One million, five hundred thousand maloti) jointly and severally as well as interest on the said amount at a rate of 18.5% per annum from the date of judgment to the date of payment.
It is not disputed that the default judgment was entered as a result of applicants' failure to enter Notice of Appearance to Defend and to file a Power of Attorney.
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At the start of argument, Ms Sello, Counsel for Respondent raised the point that 1st Applicant herein had not filed a resolution from the 2nd Applicant to depose on its behalf and as such he does not have the requisite authority to depose to an affidavit on its behalf. This point was however never raised in any of the papers and as a result could not be successfully raised at the stage of argument after the parties had joined issue. It is therefore accordingly dismissed.
On the merits of the application, it was applicants' case as stated in paragraph 5 of 2nd Applicant's founding affidavit that they were always desirous of defending the main action and that they had duly instructed Messrs G. G. Nthethe & Co., to enter appearance and defend the matter on their behalf.
The deponent continued to aver as follows at paragraph 7 of the same
affidavit:-
"I immediately approached our lawyers' offices to find out what had happened. Our own lawyers were just as surprised, but subsequent examination of the Court file revealed that the whole matter happened as a result of inadvertence in the extraction of a Notice of Appearance
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to Defend from the computer. An inexperienced secretary who was tasked to do so failed to realize that she ought to alter the wording so as to reflect the fact that there are several defendants entering appearance to defend the matter. And to compound the problem even further, a power of attorney signed by myself on behalf of the first applicant and myself was not filed in Court along with the Notice of Appearance to defend. I thus humbly request that the genuine error must not be visited upon me and 1st Applicant. "
To this above averment Respondent answered as follows especially at
paragraph 7.4 of his answering affidavit:-
"I seek the indulgence of this Honourable Court that I should not be made to suffer the deposed averments relating to an inexperienced secretary whom I firmly believe his/her task is to type and the work so done be checked by a Legal draftsperson and finally file the said papers. I still maintain that I should not be made to bear the consequences, which were not of my own making moreso as I highly regard the main action where I was defamed. "
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It was Ms Sello's submission that if the application for rescission is granted Respondent will be prejudiced because he followed the Rules of Court. Needless to mention, it is trite that in any litigation the rules of natural justice have to be observed. This includes affording all interested parties a fair hearing unless it can be shown that they have demonstrated a patent lack of interest in defending the matter.
In casu, not only did Applicants aver that their non-appearance resulted from a genuine error on the part of the secretary as shown above, they also proceeded to satisfy the requirements of an application for rescission in that apart from so explaining their default, they have shown that they have a bona fide defence to Respondent's claim in the main action and that they have prospects of success.
Although Respondent herein vigorously opposed this application, he failed to illustrate exactly how affording Applicants herein a fair hearing would per se make him suffer. On the contrary, I am of the opinion that if this Court denies Applicants the opportunity to be heard, they are the ones who stand to suffer regard also being had to the fact that the default judgment entered
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against them is for a very high amount that even induces a sense of shock all things considered.
Whilst I agree that it is the duty of every party and/or Counsel to observe the Rules of Court and as Ms Sello correctly submitted, to maintain 'a high standard which ultimately guarantees the legitimacy of the justice system', I am also of the opinion that Rules were made for the Court (to assist it in dispensing real and substantial justice) and not the Court for the Rules.
That is why the Rules themselves contain provisions that allow remedies such as rescission of judgments to take care of circumstances where although the Rules were not complied with, there are justifiable reasons advanced for same.
This is especially so in casu, where the genuineness of the secretary's error is reinforced by the fact that the Request for further particulars which was filed in the preceding month before the default judgment was granted, was couched in the plural thus signifying the intention of Applicants herein to defend the main action. Thus the position stated in the case of Venter v Bophuthatswana Transport Holdings (EDMS) BPK1997 (3) SA 376
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quoted to this Court can be distinguished from this present application for the reason that therein, the issue for determination was that of vicarious liability of the employer for the negligent acts of his employee with that being the very subject matter of the case itself.
Herein, the issue is not that of vicarious liability of an employer but whether where an administrative error has occurred in the offices of a party's attorneys, resulting in the latter's failure to timely defend an action the Court should because of that reason alone necessarily punish that party by denying him/her the opportunity to be heard.
As I have already mentioned above, it is not enough for Respondent to aver that he will suffer prejudice if Applicants herein are afforded a fair hearing for the simple reason that he did all that is necessary to ensure an end to this matter which he regards highly as it concerns his fama. The real question is what kind of prejudice will he suffer? It is in the absence of any explanation in that regard that this Court cannot simply deny Applicants an opportunity to be heard.
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This is especially important herein where time cannot even be said to be of the essence. It is my opinion that affording applicants a hearing will still give Respondent the opportunity to state and prove his case in defence of his good name. Clearly an order of rescission of a default judgment does not amount to a dismissal of one's claim and cannot result in any prejudice to Respondent.
In addition, I do not agree with the submission that by their non-appearance to defend Applicants herein necessarily flouted the Rules of Court for which they ought to be punished by being denied the fundamental right to be heard. Mere failure to timely enter opposition does not necessarily amount to a disregard of the Rules of Court, especially where good cause is shown for such failure. This being the case, this application can further be distinguished from that of Mahlakeng & 55 Ors v Southern Sky (Pty) Ltd & 7 Ors C of A (CIV) 16 of 2003 quoted to this Court I am convinced that ex facie their papers, Applicants' failure to defend the main action resulted from a genuine error.
Even assuming that they had in fact been negligent, such negligence would have to be so gross as to amount to a flagrant disregard and/or disrespect of
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the Rules of Court. However even if that was what obtained, when entertaining applications of this nature, Courts are still warned not to adopt too strict an approach which might ultimately result in a serious miscarriage of justice all things considered. A case in point is that of Napo Thamae & Ano. V Agnes Kotelo & Ano. C of A (CIV) NO 16/05 p 14, wherein the Court of Appeal stated that:-
"... a court is obliged to look at the total picture presented by all the facts and that, generally speaking, no one factor should be considered in isolation from all the others. "
By these words the Court of Appeal was warning judicial officers not to consider each ground separately from the others but to look at each particular matter holistically. My understanding of this position is that a court may still grant rescission even where an applicant was grossly negligent if other factors such as prospects of success and/or bona fides have been shown to exist in a particular case.
The above position is further supported by the view quoted with approval by the Court of Appeal in Thamae (Supra) p 13 which was expressed by Howard J in the case of Sarafoa Construction (Pty) Ltd v Zululand
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Electrical and Engineering Wholesalers (Pty) Ltd 1975 (1) SA 612 (D) at
615 wherein the latter stated that:-
"...while a Court may well decline to grant relief where the default has been willful or due to gross negligence it cannot be accepted 'that the absence of gross negligence in relation to the default is an essential criterion, or an absolute prerequisite, for the granting of relief under Rule31 (2) (b).
It is but a factor to be considered in the overall determination of whether good cause has been shown although it will obviously weigh heavily against the applicant for relief. "
It is in the light of the above reasons that the application for rescission is granted as prayed and prayers 2 a, b, and c, as they appear in the Notice of Motion accordingly made an order of this Court with costs to Applicants.
N.Majara
JUDGE
For Applicants : Mr Mohau
For Respondent : Ms Sello
