CIV/T/206/2003

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MARY
MOTSUSI APPLICANT

And

UNITY
ENGLISH MEDIUM SCHOOL 1st RESPONDENT

DEPUTY
SHERIFF OF THE HIGH COURT 2nd RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr Justice T. Nomngcongo on the 24th October 2005

Judgment
in this case was entered for the plaintiff (1st Respondent herein) on
the 5th May 2003. On the 13th August 2003 the defendant
(Applicant
herein) filed an urgent application for stay and rescission

Page 2

of that
judgment entered by default after she had failed to file plea. On the
15th August the respondent filed his notice of intention
to oppose
the application. Several postponements followed and the 1^st
respondent filed his answering affidavit on 6th November 2003. This
was followed by further postponements until the matter was
finally
came up before me on 29th March 2004. It had been properly enrolled
for that day pursuant to proper notices of set down
at the instance
and initiative of the respondent. Yet on that day when Mr Hlaoli
appeared in court he indicated that he did not
know that the matter
was on the roll and consequently he was not prepared to argue.
Further he had not at that stage not filed
any reply to the
respondent's answering affidavit. He sought to have it filed on that
day and Mrs Lethola for the respondent was,
justifiably, dead opposed
to such late filing without so much as any attempt for condonation
for the dereliction.

I had not
by then properly read the file and there were other matters

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that I
had to urgently attend to on that day and I postponed the matter to
the following day, the 30th March. On that day I allowed
the late
filing of the reply in the interests of expedition and acquainting
myself with the broader justice of the case. In doing
so I showed the
displeasure of the court however and mulcted the applicant with costs
of arguing the application for late filing
of the reply. The matter
was postponed for fifteen minutes to let me and the respondent
acquaint ourselves with the reply and the
matter was finally argued.

After
this the file then would not be traced anywhere. It had been
misplaced as so often happens somewhere between my registrar's
office
and the registry until is surfaced on my desk, mysteriously as it
were, last week. I proceed then to deal with it now.

The first
thing that I observed is that the application (for stay and
rescission) was brought way out of time as prescribed by Rule
27(6)

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1. No
   application was made for condonation of the non-observance of that
   rule. Secondly, there is no indication that the applicant
   has
   furnished security to the satisfaction of the Registrar Rule 27
   (6)b. These omissions are fatal to this application.

   
   

The
applicant's case is that he instructed lawyers in Johannesburg to
conduct his defence. She says she learns that they instructed
Messrs
Webber Newdigate & Co who in turn filed opposing papers only to
learn that judgment had already been taken. Then he
goes on to say
that he has already been confronted by the deputy sheriff seeking to
attach her property. That is literally all
that the plaintiff tells
the court in motivation of her application.

An
applicant for rescission of a default judgment must show good cause
and give the court a reasonable explanation for his default.
He must
also show bona fides. (See Grant V. Plumbers (pty) LTD.

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1949(2)
SA 470 at 476) and that he has a bona fide defence.

In the
present case the applicant simply tells us that he instructed unnamed
lawyers in Johannesburg who instructed Attorneys Webber
Newdigate &
Co. Why she had to instruct lawyers in Johannesburg when she lives
and works in Maseru she does not say. She does
not say what she did
about the instructions and what difficulties if any she encountered
in the prosecution of her case. In short,
she gives us no explanation
at all for her default. She does not even tell us when she first
became aware that judgment had been
taken against her. She fails
completely to take the court into her confidence. She simply is not
bona fide.

Her
defence is that the judgment debt was really owed by someone else to
whom it had been paid by the 1st respondent and that the
1st
respondent demands it from her because she had promised that the

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latter
would pay up. Why would 1st respondent, who is apparently her
employer burden her with a debt that is not hers when they
well knew
who owed them. Her defence is so improbable I would not take a second
glance at it. It is not in my view bona fide.

This
application is dismissed with costs.

T.
NOMNGCONGO

JUDGE

24
October 2005

For
Applicant : Mr Hlaoli

For
Respondent: Mrs Lethola