CIV/APN/REV/2005
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:
WILLIAM LEPOTA APPLICANT
AND
UNITY ENGLISH MEDIUM SCHOOL RESPONDENT
JUDGEMENT
Delivered by the Honourable Mr. Justice Monapathi On the 16th day of August, 2007
The Applicant in this review matter had to fight on too many fronts. Mr Metsing was to realize this at the beginning of argument.
The present Respondent had instituted a case CC/422/00 in the court a quo in which it sought to evict
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Applicant. On the 14th December, 2001 judgment was granted by default against the Applicant
Having served judgment as aforesaid Respondent filed a notice of taxation which was served on Applicant. On 11th January, 2004 the Applicant then filed an application for rescission in Rule 46(1) of the Subordinate Courts Act 1988 which reads:
"Any party to an action or proceedings in which a default judgment has been given may apply to the court on notice to the other side to rescind or vary such judgment provided that the application shall be set down for hearing on a date within six weeks after such judgment has come to his knowledge."
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This application was set down for hearing on the 4th July 2002 for hearing on the 7th January 2003. On that day the application was dismissed apparently for lack of prosecution, for non-appearance of the Applicant therein.
Thereafter the Defendant in the court a quo filed another application. This was in terms of Subordinate Courts Rules (1996) Rule 46(10) which reads:
" (10) where rescission or variation of a judgment is sought on the ground that it is void ab origine or was obtained by fraud or mistake, application may be made no later than one year after the applicant first had knowledge of such voidness, fraud or mistake."
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As Applicant, without hesitation, contended that this application was intended to review the decision of the grant of the default judgment and not the application for rescission. This is, indeed, obvious judging from the reasons put forward by Applicant which are as follows.
It was not enough, the claim being one for un-liquidate damages, for the court to have granted damages without an affidavit or viva voce evidence. It was said this was in contravention of Rule 12(4) of the Subordinate Court Rules 1996. It was submitted that this meant that the Plaintiff wrongly proceeded in terms of Rule 12(7) of the said Rules. The Rule reads thus:
"The clerk of court may refer to the court any request for judgment and the court may thereupon:
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If default judgment be sought, call upon the plaintiff to produce such evidence either written or oral in support of his claim as it may deem necessary;
If a judgment by consent be sought, call upon the plaintiff to produce evidence to satisfy the court that the consent has been signed by the defendant and is a consent to the judgment sought;
Give judgment in terms of plaintiffs request for so much of the claim as has been established to is satisfaction;
Give judgment in terms of the defendant's consent;
Refuse judgment; or
Make such other order as may be just." (My emphasis)
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Perhaps as Mr Metsing for Applicant contended, the Plaintiff may have been wrong in having secured a judgment in contravention of the said rule, it having been not entitled to have proceeded without an affidavit or viva voce evidence. But as Mr Mofilikoane for Respondent submitted, the matter was more complicated than that. He raised other issues on the other hand.
A lot of issues have been raised around whether the default judgment of the 14th December 2001 was void. About the complaint against the judgment, the learned Magistrate in commenting about the application made in terms of the Rule 46(10) had said:
"I would like to show that this is a smokescreen in order to succeed, Applicant
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failed to give a reasonable explanation for his default.... I have considered the reasons advanced on behalf on the Applicant are of not sufficient to justify the exercise of my discretion in favour of the Applicant. A callous disregard of the rules by a counsel tips the balance against granting of a rescission of judgment." (My emphasis).
The learned Magistrate was clearly forthright in the decision she took. The Applicant herein did not find it difficult to concede that he did not take any steps against the application for rescission under Rule 46(1) which was refused. In my view this is one of the imponderables. He is insistent that he was entitled to apply for yet another rescission under Rule 46(10). Mr Mofilikoane submitted that this was untenable. We need to note that in that first
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application, Applicant tendered costs based on the estimate following the taxed bill. I agreed with Mr Mofilikoane that this was clearly a case where Applicant was indirectly seeking for a second bite.
With regard to the second application the learned Magistrate continued and said:
" Furthermore there was no indication in the affidavit that Applicant had furnished security for costs in compliance with the provision of the Rules which require payment of security for costs in application of this nature. Non-compliance thereof renders the papers in this application to be not properly before this court. (My emphasis).
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I thought, in this regard, that Applicant found it difficult to deny that that was the factual position. See also Rule 46(3) about the requirement to pay security. The learned Magistrate then comes to end by saying:
"Furthermore I have come to the conclusion that the Applicant has failed to show good reason for default. Applicant has failed to show a bona fide defence. Under these given circumstances the application is dismissed with costs." (My emphasis).
I did not find that the learned Magistrate could be faulted in coming to the above conclusion.
Perhaps there could be logic in saying that once the application for the first rescission failed, the judgment in favour of the Respondent was kept alive. That it could
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thereafter be reviewed, for any reason, seems strange, because that is fundamentally untenable. Perhaps Mr Mofilikoane was correct in saying that the only remedy for the Applicant, if dissatisfied, was to appeal.
Much as Counsel on both sides sought to complicate the issues in this matter, besides the issues of absence of security, absence of bona fide defence, absence of good cause or good faith, it became apparent that this application was untenable and it was squarely in the area of abuse of process of court.
The application is dismissed with costs.
T Monapathi
Judge
For Applicant: Adv. Metsing
For Respondent: Adv. Mofilikoane
