CIV/APN/223/04

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

KHOTSO
LEBAKENG APPLICANT

and

MAMPHO
T.M. MOHOLOBELA 1st RESPONDENT

MESSENGER
OF COURT 2nd RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 13th December 2006

Applicant/defendant
approached this Court ex parte for relief as follows: -

1. That
   a rule nisi be issued returnable on the date and time to be
   determined by this Honourable Court, calling upon the respondents
   to
   show cause, if any, why:-

   
   

1. Ordinary
   rules pertaining to service of process shall not be dispensed with
   due to the urgency hereof;

   
   

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2. Execution
   of a writ held by 2nd Respondent against

   
   

the property of Applicant should not be stayed pending finalization
of this Application;

3. Applicant
   should not be allowed to serve and file his plea to 1st Respondent'
   summons;

   
   

4. The
   non-service upon Applicant of the summons and order of this
   Honourable Court, the latter apparently granted against him
   in
   abstentia, shall not be held un-procedural, hence prejudicial on
   the rights of the applicant and thus unlawful;

   
   

5. Respondents
   should not be directed to pay costs only in the event of their
   opposition hereof;

   
   

6. Applicant
   shall not be granted further and/or alternative relief as this
   Honourable Court may deem fit and/or expedient in the

   circumstances.

   
   

2. That
   prayer 1(a) and (b) operate with immediate effect in the interim.

   
   

Facts
that brought about this application are that respondent/plaintiff
issued summons against applicant/defendant for cancellation
of a sale
agreement allegedly entered into between the parties in November
1998, refund of the amount of M45,000 (forty-five thousand
Maloti)
and costs of suit. On the 6th November 2004, respondent was granted
judgment by default in terms of the prayers as they
appear in the
summons. On the 25th November 2005

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applicant
filed this application in the manner as already stated above and was
granted a rule nisi returnable on the 6th December
2005

On the
21st November 2006 about a year later, when the matter was supposed
to proceed, counsel for applicant, Mr. 'Makong applied
for a
postponement on the ground that applicant had not yet filed his
replying affidavit. He informed the Court that this was a
result of
the fact that they had initially withdrawn as applicant's attorneys
of record due to unclear instructions and that late
last month'
(which would be that of October) applicant instructed them to
represent him again but had not been to their office.

In his
opposition of the application, Mr. Makututsa for respondent pointed
out that applicant had filed his replying affidavit on
the 13th
February 2006 hence why the matter was eventually set down for
hearing on the 6th November 2006. He argued that any further

postponement of the matter would be prejudicial to respondent
especially when account is taken of the fact that since applicant
was
granted the interim relief, the matter has been postponed on numerous
occasions. Perusal of the file revealed that indeed a
replying
affidavit had been filed which made me wonder why Mr. 'Makong ever
suggested otherwise. I do not even want to venture
there.

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Having
heard both Counsel, I dismissed the application for postponement for
the reason that I was not furnished with any plausible
reason for
same, not to mention that even the lame excuse offered by Mr. Makong
was not supported by any proof either in the form
of a notice of
withdrawal duly filed with the Court or any minute in the file
evidencing same. It was my feeling that Counsel was
simply engaging
the Court in shenanigans which were meant to frustrate the
proceedings.

I have to
state from the onset that this is the type of behaviour which is
highly unprofessional and it ought to be discouraged
at all costs.
Needless to say, counsel for applicant had not even bothered to
prepare his heads of argument which factor gave me
the impression
that he was of the mistaken belief that postponement of matters is
simply there for the taking. How wrong was he!

During
his address and in motivation of this application, it was Mr.
'Makong's submission that applicant was served with an order
of this
Court which was obtained by default on or around the 24th November
2005 as well as with a writ of execution against his
property. He
added that it is applicant's case that he was never personally served
with the summons in the main action resulting
in his not filing his
plea and that as such, he was denied a hearing by this Court.

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Counsel
for applicant submitted further that applicant has a bona fide
defence in that he does not recall being indebted to 1st
respondent
or even signing the annexure MM3 and that he does not recognize the
signature that appears therein. He added that the
Court Order in the
main action was obtained to frustrate the due process of the law in
that applicant was denied an opportunity
to be heard and present his
side of the story.

As a
first point in his reply, Mr. Makututsa for 1st respondent pointed
out that the perceived urgency by which applicant approached
this
Court has not been disclosed in the certificate of urgency save for
it having been stated that 'applicant is in custody and
unless he is
released on bail the law would be rendered defective both in spirit
and essence as no service of process was effected
on the applicant
thus not affording him the right to be heard'. It was his submission
that there has been non-compliance with Rule
8 (22) of the High Court
Rules warranting a dismissal of the application.

In
addition, counsel for 1st respondent stated that judging from the
history of this matter starting from the date of the issuance
of
summons, the granting of default judgment and the issuance of a
warrant of execution resulting in the lodging of a complaint
with the
Registrar on the 8th September 2005,

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applicant
had ample time within which he could have moved this application if
it was indeed urgent.

It was
his further submission that applicant wanted to create the impression
that he only came to have knowledge of the judgment
when he was
served with a writ of execution yet he failed to advance any reasons
why he ignored the process when he was served
with a copy of the
summons on the 1st July 2004.

The
second point which he raised was that in an application for
rescission, the applicant must give a reasonable explanation for
his
default, show that the application is made bona fide and not merely
to delay the plaintiff's claim and that he has a bona fide
defence to
the claim. Mr. Makututsa submitted that in casu, applicant has failed
to meet all the three requirements for the reason
that he failed to
give a reasonable explanation why he ignored the summons. Further,
that he has not shown that the application
is made bona fide in that
he does not explain why he is only taking action when his car is
about to be auctioned in execution of
the judgment. Lastly that he
has not shown that he has a bona fide defence except to state that
respondent is known to him.

I now
proceed to deal with the above points.

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Urgency

In the
certificate of urgency accompanying the notice of motion signed by
Advocate E.K. Mahase, paragraph 2 reads as follows :-

"I have accordingly considered this matter and bona fide believe
it is a matter for urgent relief in terms of Rule (8)22 of
the High
Court Rules of 1980 for thefollowing main reason:-

Unless Applicant is released on bail, the law would be rendered
defective both in spirit and essence, as no service of process
was
effected on the Applicant, thus not affording him the right to be
heard - Audi Alteram Patent rule.

Rule
8(22) of the High Court Rules provides in part and insofar as is
relevant to this issue as follows: -

2. In
   any petition or affidavit filed in support of an urgent application,
   the applicant shall set forth in detail the circumstances
   which he
   avers render the application urgent and also the reasons why he
   claims he could not be afforded substantial relief in
   an hearing in
   due course if the periods presented by this Rule were followed.

   
   

2. Every
   urgent application must be accompanied by a certificate of an
   advocate or attorney which sets out that he has considered
   the
   matter and that he bona fide believes it to be a matter for urgent
   relief.

   
   

The above
quoted rule is two-fold. Firstly, an applicant is required to justify
his approaching the Court extra-ordinarily

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without
notice to the other side. Secondly, the deponent to the certificate
of urgency has to establish the bona fides for so approaching
the
Court.

Applying
the requirements of paragraph (b) as quoted above in casu, I did not
find anywhere in the applicant's founding affidavit
where he set out
in detail the circumstances as envisaged by the rule. Aside from
relating the history that led to the institution
of this application
as contained in paragraph 5 thereof, he averred as follows in the
next paragraph:-

"I should mention that I have no other remedy than to proceed in
the manner I am doing herein, as Second Respondent is out
to attach,
remove and/or action (sic) my property from my home and/or place of
business, more to my embarrassment and injury to
the esteem in which
I am held by my clientele and members of the general public, moreso,
to my prejudice as I do not recall concluding
any agreement or
contract by which I could be indebted to the Plaintiff."

Clearly
the above passage does not satisfy the provision. As far as paragraph
(c) goes, at first blush, one would be inclined to
accept that the
certificate does comply with its requirements in that the deponent of
the certificate of urgency Advocate Mahase
has stated that he bona
fide believes that the matter is urgent. However, it has been stated
by the superior Courts in a number
of cases that it is not sufficient
that an advocate or attorney so states. He is required to go further
and shortly

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state the
grounds of the urgency. Thus in the case of the Commander LDF &
Anor v Tseliso Matela LLR/LB pl3 the learned Gauntlett
JA opined as
follows:-

"I pause to note that the frequency with which interdicts and
other orders are sought by counsel, and granted by the High
Court,
without notice to parties cited as respondents is a matter of
concern. As a general rule, basic considerations of fairness
and the
need to prevent the administration of justice being brought into
disrepute require appropriate notice to be given. Orders
should only
be granted without notice where this is rigorously justified (where,
for instance, there is extreme urgency or the
need to prevent the
order from being frustrated where any prior notice could well have
that effect...."

Thus, in
the present application, not only has applicant failed to meet the
requirements of paragraph (b) of the rule, but he has
also through
his counsel, failed to state the grounds for urgency in the
certificate of urgency. This is because I failed to make
any logical
connection between the purported ground stated therein to wit,
'unless applicant is released on bail, the law would
be rendered
defective both in spirit and ...' and the present application.

In
addition, even if such nexus could be said to exist, the ground as it
is stated would still fall short of being satisfactory.
I do not see
how the fact of a person not being released on bail would render the
law defective both in spirit and in essence.
Further, the alleged
failure to effect service of

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process
on the applicant is not per se a ground for urgency as envisaged by
the rule unless it is satisfactorily proved. In the
light of the
above considerations, I am of the opinion that applicant has failed
to make out a case for approaching this Court
urgently and without
notice to the respondents. Accordingly I find that this was a point
well taken.

I proceed
further to consider whether applicant herein has given a reasonable
explanation for his default and that he has made the
application bona
fide and not merely to delay the matter. It is applicant's case that
he was never served with summons and was
consequently denied the
opportunity to file his pleas especially at paragraph 5,3 of his
founding affidavit where he avers:-

"Further, I am advised by my Counsel herein, and I verily
believe same to be true that I should have first been served with

summons and been allowed time to file a plea in my defence before a
decision could be taken against me."

To this,
1st respondent answered as follows as contained in paragraph 16 of
his answering affidavit:-

"Contents herein are denied as making no sensible reading
because in terms of MMI applicant was duly served and he ignored

process."

The said
MMI is a return of service signed by L.S. Mohoang, the deputy sheriff
and filed with the Court. It reads in part and insofar
as is relevant
to the above averment as follows :-

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"...on the 1st July 2004...I served the copy of the summons upon
the defendant personally at the given address Maseru Borokhoaneng,

and he signed the original copy."

Authorities
abound that a return of service is prima facie proof of service and
evidence of what is stated therein. Consequently,
a litigant who
disputes such service must adduce the clearest of evidence. See the
case of Michael Mphetha Ramphalla v Lesotho
Bank PLC & Another
CIV/APN/310/97 (unreported). See also the case of Doti Store v
Hershel Foods (Pty) LTD. 1982-84 LLR 338
at 339.

In casu,
applicant simply averred in his founding affidavit that he should
have been served whereas in paragraph 6 of his replying
affidavit he
stated:-

"I aver that I was not personally served with summons. I also
note with interest that the deponent does not attempt to proof
(sic)
the alleged service on me. I am advised by my Counsel herein, and I
verily believe so, that without proof of an affidavit
from the
sheriff, this remains an unfortunate allegation against me."

I have
already shown that where a return of service has been filed as proof,
the onus shifts on to the applicant to disprove same
by adducing the
clearest evidence. There is no requirement for the sheriff to file an
affidavit over and above a return of service
except under
circumstances governed by Rule 4(7) of the High Court Rules which
deals with service

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received
from a territory recognized by Lesotho as a foreign state. See also
my comments in the case of VVM Masoabi v Assets Recoveries

CIV/T/204/05 (unreported) p 11-12.

It is in
the light of the above that I find that applicant has indeed failed
to give a reasonable explanation for his default and
that this point
too was well taken by 1st respondent.

Bona Fide
Defence

That an
applicant who seeks relief by way of stay of execution pending
rescission has to show that he approached the Court bona
fide and not
with the intention to delay the matter and that he has a bona fide
defence to the plaintiffs claim is a trite principle
of law. The next
issue for determination by this Court is therefore whether applicant
has discharged this onus.

The
relevant averment can be found at paragraph 5.4 of his founding
affidavit where he stated as follows:-

"I
should point out that first Respondent and I are known to each
other,... and that had I been so served, I should (sic) have

timeously filed my plea and defended the action against me. I
therefore, have a bona fide defense to the action brought by the

Plaintiff against me."

Unsurprisingly,
1st respondent pointed out that the fact of the parties being known
to each other is not a bona fide defence which
in my view is
precisely the import of the above extract.

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deputy
sheriff who served applicant with the summons is the same one who
served him with the writ of execution is questionable and/or

suspicious. This is because not only were no plausible reasons
advanced for this suggestion but also because there is no basis
for
so suggesting. Suffice it for me to pose this question; if the Courts
of law have only so many sheriffs to serve the entire
nation, how
possible and/or practical would it be for each defendant to be served
with summons by one and be served with a writ
of execution by a
different one?

I can
only conclude by stating that in my opinion, this is one of those
applications for stay of execution pending rescission, which
have no
basis and or justification except just to frustrate the judgment
creditor. The minutes of the Court's file reveal that
1st respondent
herein was granted judgment as far back as 2004 and I do not even
understand why his counsel of record in the main,
Mr. Fosa, had to
even lodge a complaint before execution of same could be effected,
not to mention that most of the postponements
which were granted must
have contributed to frustrating the whole process.

For all
the above reasons, I find that applicant has failed to make out his
case and I accordingly discharge the rule.

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As a way
of marking my displeasure and in the light of the Court of Appeal's
attitude as stated in the case of The Commander LDF
v Matela (supra)
I accordingly order that applicant be mulcted with costs on an
attorney and client scale.

N. MAJARA

JUDGE

For
applicant : Mr. Makong

For 1st
respondent : Mr. Makututsa

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