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attorney who had by then withdrawn as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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