CIV/APN/402/02
IN THE HIGH COURT OF LESOTHO
In the matter between:
LESOTHO BANK A PPELLANT/APPLICANT
VS
TAMUKU MICHAEL MOLEFE NKALAI RESPONDENT
J U D G M E N T
DELIVERED ON THE 17th DAY OF NOVEMBER, 2006BY HON. MRS JUSTICE K. J. GUNI
Application for rescission of default judgment Essential requirements to be established by the applicant
(1) that he was not deliberately in default
(2) That he has a bona fide defence againstthe respondents claim.
HISTORICAL BACKROUND OF THE CASE
The respondent herein approached this court by way of an ex-parteapplication and on the basis of urgency. The Respondent obtainedthe rule nisi which was subsequently confirmed in the absence ofthe applicant who was the respondent in that matter. The applicanthas now approached this court by way of Notice of Motionproceedings in which he seeks the rescission of that defendantjudgment and leave to oppose that application.
2 APPLICANTS CASE.
It is averred by the applicant that he is an adult mosotho male ofMALEFILOANE, in the district of Butha-Buthe here inLESOTHO. He is a mine-worker who works and resides atVAAL REEFS MINES in the Republic of South Africa. While hewas at work in the Republic of South Africa, the applicant receiveda message from his wife MANTJOETSENG NKALAI that shehas been served with the certificate of urgency, the interim courtorder-returnable on the 2nd day of September, 2002. Theapplicant explained to his employer that he has to come toLESOTHO in order to deal with that matter. His employer
refused to release him. Therefore he alleged he was not in willfuldefault.
The applicant managed to come to LESOTHO about October,2002. He consulted with his attorney of record. They investigatedthe case at the High Court registry office to ascertain the currentstate of affairs. It was then discovered that the rule nisi wasconfirmed on the 16th September, 2002. The said final order wasnot served upon the applicant nor his wife although according tothe applicant the said order was reportedly served upon his wifewho denies that she was served with the final order.
In that ex-parte application the respondent sought and obtained thecourt order which authorized the sheriff to immediately attach andtake into his possession this applicants motor vehicle. This motorvehicle was bought by the applicant on Hire-Purchase from theLESOTHO BANK. He further alleges that he has been payingby monthly instalments the purchase price of the said mothervehicle.
3 RESPONDENT CASE
It is the respondents case that the application for rescission is outof time and that the applicant was in willful default. It is furtheralleged that the applicant did not act timeously after receiving thefinal order.
The applicant has raised some points in limine. The first questionof law raised is the existence of the ANSWERING affidavit. Thedefendent of the said Answering Affidavit did not sign nor sworebefore the commissioner of oaths to acknowledge that he knowsand anderstands the contents of the said affidavit. SECTION 5 (2)(a) THE OATHS AND DECLARATIONS PROCLAMATION 1964.
This document although it purports to be an Answering Affidavit,it does not qualify to be regarded as such because it does notcomply with the provisions of OATHS AND DECLATIONREGULATIONS 1964. In terms of SECTON 5 (2) (a) THEOATHS AND DECLARATION PROCLAMATION 1964 thecommissioner of oaths is obliged to certify below the deponentssignature or mark that the deponent has acknowledge that heknows and understands the contents of the affidavit. There is nomark or signature on the Answering Affidavit purporting to havebeen deposed to by Antony Scot MCALPINE. That document,
therefore does not qualify to be regarded as an Affidavit in terms of the law. Therefore this application for rescission of the defaultjudgment proceeded unopposed.
4 ESSENTIAL REQUIEMENTS IN AN APLICATION
FOR RESCISSION.
Amongst other grounds the court may rescend or set aside its ownjudgment if the same was erroneously sought or erroneouslygranted in the absence of any party affected thereby. SECTION45 (1) (a) HIGH COURT RULES 1980.
The applicant herein seeks the rescission or setting aside of thedefault judgment which was granted in his absence while he wasaway at the mines in VAAL REEFS, in the Republic of SouthAfrica. The respondent herein purported to collect a debt andexecute against the property of this applicant at once by means ofan ex-parte application. That is not in order. Debt collectioncannot be effected by means of ex-parte application.
The order so obtained in the absence of the other party affected by it is rescendable. SECTION 45 (1) (a) HIGH COURT RULES 1980.
The Applicant has to establish on the balance of probabilities asthe standard of proof applicable in civil matters, that the said judgment was obtained in his absence and that he was not willfullyin default. In our present application the applicant has shown thiscourt that he was away in the Republic of South Africa when thisrespondent obtained ex-parte the court order in question.
The Applicant although he received a reliable message that hiswife at his home at Malefiloane in Butha-Buthe in Lesotho hasbeen served with an interim court order in question, his attempts tocome back to LESOTHO immediately in September in order todeal with matter were unsuccessful. He was released on properleave only the following month October. He then and there tooksteps to deal with the matter. Therefore this court is satisfied thatthis applicant was not in willful default.
As set out in the applicants case paragraph 2, he has the bonafide defence. It is not enough to show the court that the applicantwas not in willful default, he must in addition show the court thathe was the bona fide defence. The subject matter of the defaultjudgment is the motor vehicle which this applicant claims is his.He is therefore entitled to defend the respondent claim to have thesame motor vehicle attached. On the merits of this application the
applicant has bona fide defence. CHETTY v. LAW SOCITYTRANSVAAL 1985 (2) SA 756 (A) at 764J 764 D.
The application is granted as prayed with costs.
K.J. GUNIJUDGE
For Applicant: Mr.Ntlhoki
For the Repondent: Ms. Qhobela