CIV/APN/194/2003
CIV/T/80/99
IN THE HIGH COURT OF LESOTHO
In the matter between:
LESOTHO NATIONAL GENERAL INSURANCE PLAINTIFF
COMPANY LIMITED
And
MOLOANTOA SEEMA 1st RESPONDENT
BASIA TRANSPORT (PTY) LIMITED 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
JUDGMENT
Delivered by the Honourable Justice T. Nomngcongo On the 25th of February 2008
Judgment in this matter was reserved on the 31st May 2004. It is one of numerous judgment pending before me. This is occasioned by various reasons chief amongst which is the over burdening of judges with lengthy and sometimes complex trials and cases that are billed as high profile, needing immediate attention which might interrupt even a lengthy and complex trial. These are invariably interspersed with opportunistic rolls designed to take up each and every day between and immediately after the trials leaving no room for writing up judgments. In the process files pile up.
Some get lost, others get misplaced and all sorts of chaos result and a Judge is sometimes unable to follow up on a case.
The present file seems to have somehow presented on my desk from the registry. No one is able to account for its movement to and from my chambers except that it might have been mistakenly removed together with others. The situation is simply chaotic, it needs over-haunting!
In this application, the applicant seeks rescission of judgment granted by default on the 24th March 2003. Relief is bought in terms of Rule 45(1 )(a) (c) to the effect that it was granted as a result of a mistake common to both parties.
The gist of the applicant's averments is the effect that he did not in fact get notice of the set down for hearing of the matter. The notices of hearing in his possession on their face do not indicate any sign of service whereas those of the respondent do on the hand indicate such service except of the 19th October 2001 which according to the Respondent was admittedly not served on either the applicant nor his attorney who had by then withdrawn as
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attorneys of record for applicant. Respondent says in terms of the rules it was not necessary to serve such notice on them because:
"the sub provides that, unless the party for whom the attorney was acting himself within three days notifies all other parties to the proceedings of a new address for service, it shall not be necessary to serve documents on him"
While it is true that unless the party who was represented by the attorney provides a new address for service within three days of withdrawal, this is provided that Rule 15(4) regarding notification is fully complied with. It provides on the first part as follows:
"The, notification to the Registrar shall specify the date when, the parties to whom, and the manner in which the notification was sent to all parties, and shall be accompanied by a copy of the notification so sent"
An attorney who withdraws therefore is under a duty to make everything possible to make sure that all the parties including the ex-client are aware of the withdrawal and should leave no doubt with any party about his move. It has been held therefore that the exercise cannot be left with assumptions
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inferences and guesswork. This is an obligation not only to the ex-client and the other parties but also to the court which may also be enjoined to give direction as to service where appropriate see TRANSORIENT FREIGHT V EUROCARGO COORDINATORS 1984(3) SA 542.
It seems to me that conversely a party who acts on the strength of a notice of withdrawal must ensure that it has compiled with the rules. He cannot act on a defective notice of withdrawal; one that is lacking in the safeguards provided by the statute. We may not know for instance that the withdrawal has come to the notice of the ex-client and the other party can hardly be heard to say "well his attorney was negligent by not telling him as required by the law. Let him be!"
In the present case the applicant says he was not given notice of set down. This is admitted by the respondent. There is no indication whatsoever that the withdrawal was in compliance with the rules. It is not even annexed to the papers. A perusal of the record does not even indicate that the Judge who handed down default judgment was aware that the applicant -defendant had not been notified of the date of hearing and the reasons thereof
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In the circumstance the application is granted and the rule nisi is confirmed with costs.
T. NOMNGCONGO
JUDGE
For Applicant : Webber Newdigate
For Respondent : Du Preez, Liebetrau
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