IN
THE HIGH COURT OF LESOTHO

CIV/APN/178/2003

CIV/T/385/95

In the matter
between;

MADYKE
TŠIU APPLICANT

VERSUS

BETTY
CHABANE 1^st
RESPONDENT

THE
MESSENGER OF COURT 2^ND
RESPONDENT

MAMELLO
MEMELA 3^RD
RESPONDENT

ATTORNEY
GENERAL 4^TH
RESPONDENT

JUDGMENT

DELIVERED BY
THE HON. MRS JUSTICE K.J. GUNI

ON
16^TH
DAY OF NOVEMBER 2009

INTRODUCTION

[1] The
applicant is MADYKE TŠIU a Mosotho female adult married in
community of property and duly assisted by her husband
to sue in this
matter. The 1^st
Respondent is Betty CHABANE a Mosotho female adult and business woman
of Marabeng in the Berea district. This is a matter of an

application for stay of the execution of a writ issued out of this
court pursuant to the enforcement of the default judgment obtained
by
the 1^st
Respondent against the applicant. This was in CIV/T/385/95. The
applicant in this matter is one of the three defendants. The

applicant in this matter, is the 1^st
defendant in the above mentioned trial. The plaintiff/1^st
Respondent
claimed in that CIV/T/385/95 the payment from this applicant/1^st
defendant, of the sum of Fifty Thousand Maloti [M50,000] being
damages for injury in her character and reputation. She claimed

against the 2^nd
and 3^rd
defendants payment of Twenty Thousand Maloti [M20,000] for unlawful
arrest, detention and contumelia and also Twenty Thousand Maloti

[M20,000] for loss of earrings during the period of detention. The
plaintiff obtained the default judgment. She issued out of
this
court the writ of execution which she caused to be served, presumably
upon all defendants.

[2] Of
the three defendants only one – this applicant approached this
court by way of this urgent ex-parte
application, for stay of execution and rescission of the said default
judgment. She sought and obtained a rule nisi
in the following terms:

“KINDLY
TAKE NOTICE
THAT
an application will be made to this Honourable Court on the 24^th
day of April 2003 at 9:30 a.m. or so soon thereafter as the matter
may conveniently be heard for an order in the following terms:

1. 
   Dispensing
   with the Rules of Court pertaining to periods and modes of service
   of process owing to the urgency of this matter.

   
   

2. 
   That
   A Rule Nisi be and is hereby issued returnable on the date and time
   to be determined by this Honourable Court calling upon
   respondents
   to show cause (if any) why:

   
   

1. 
   Execution
   of judgment in CIV/T/385/95, which judgment was granted in favour of
   1^st
   respondent on 19^th
   day of September 2002, shall not be stayed pending finalization of
   this application.

   
   

2. 
   The
   said judgment in CIV/T/385/95 shall not be rescinded and set aside.

   
   

3. 
   Directing
   1^st
   respondent to pay costs hereof in the event of opposition.

   
   

4. 
   Granting
   further and/or alternative relief.

   
   

3. 
   That
   prayers 1 and 2 (a) operate as Interim relief.”

   
   

The
other two defendants have filed no papers, obviously they are
prepared to accept and abide by whatever judgment this court passes.

In other words, from the papers filed of record it is clear that only
the applicant/1^st
defendant and the Plaintiff/1^st
respondent have filed papers, in order to place their special
requests before court - urging it to find in their favour.

APPLICANT’S
CASE

[3] The
applicant claims that she was not deliberately in default when the
plaintiff/1^st
respondent sought and obtained the said judgment against her. Her
absence was due to her failure to fully instruct her attorneys
of
record, who when the Notice of hearing of the matter was brought to
their attention, communicated the same to her by means of
a letter
which she claims she did not receive. In the said letter the
attorneys gave her the date of the hearing of the matter.
They also
pointed out to her that her failure to fully instruct them, will
compel them to withdraw from representing her. In
those
circumstances, without her knowledge she was on her own. As she
discovered subsequently, they did withdraw as her attorneys
of
record. There was therefore a complete cut off of any communication
between her and her attorneys of record. It appears that
at some
stage the case was struck off the roll. When and how it was
reinstated she does not know. But she became aware of the
default
judgment when the writ of execution issued out of this court pursuant
to that default judgment was served upon her. She
further claims
that the default judgment was erroneously entered against her by the
court without any evidence establishing her
liability and the quantum
thereof. There was no evidence to determine an appropriate amount of
damages as the law in this country
requires.

POINTS
TO BE CONSIDERED

[4] In
matters of this nature there are a few questions to be asked and
determined. The first question is whether or not the applicant
was
deliberately in default.

The
second question is whether or not the applicant has a bona fide
defence against the plaintiff’s claim.

These
two questions are very important. For the proper determination of
the application of rescission of default judgment answers
to these
questions must be found in the papers filed of record. In motion
proceedings which is the category into which this application
for
stay of execution and rescission of judgment falls, the affidavits do
not only form part of the pleadings, they are evidence
as well. It
is in the affidavits that essential allegations and/or the proof
thereof, if any, are contained.

According
to the applicant, the trial was set down several times and several
times, that trial was postponed for various reasons.
As I have
mentioned earlier on this case was even stuck off the roll. The
perusal of the court record bears this out. It appears
that this
case remained pending for a very long time. When and how it was
re-instated on the roll, is not clear. It would appear
that the
plaintiff/1^st
respondent’s attorneys may have been active alone without any
of the defendants being aware or taking part. There was some
kind of
paralysis afflicting the defendants.

During
that interim period the matter on the part of the defendants was
dead. None of the defendants had any more interest in the
matter.
The applicant had lost contact with her attorneys. When the 1^st
respondent’s attorney filed the notice of set down for the
hearing of the case, the applicant’s attorneys’ attempts

to contact her were unsuccessful. Therefore it would appear that the
default judgment was entered against the defendants in their
absence.

Was
this absence deliberate? Following a period of long delay and the
attendant confusion as to when and how the matter was struck
off the
roll; and then put back on the roll, this question is not easy to
determine. The parties were not communicating effectively
up to and
including the period during which the default judgment was obtained.
Applicant did not receive the letter which her
attorney wrote to her
in order to inform her of the date of the hearing and that as she has
not fully instructed them they were
not able to continue to represent
her. In these circumstances, the applicant cannot technically be
held to have deliberately absented
herself at the hearing of the
matter.

The
second question is whether or not she has a bona fide defence against
the plaintiff/1^st
respondent’s claim. The applicant in this matter must disclose
her defence and the material facts upon which the said defence
is
based, with sufficient completeness to enable the court to decide
whether such defence is a bona fide one MAHARAJ
V BARCLAYS NATIONAL BANK Ltd 1976 (1) SA 418 (A).

The
applicant disputes the alleged indebtedness to the 1^st
respondent. This indebtedness is not based on a liquid document nor
is it a liquidated demand. The nature of the claim is such
that a
bare denial forms bona find defence. She has raised the question of
the competence of the court to grant without evidence
unliquidated
amount of damages. According to the law it is not competent for the
court to grant default judgment on the unliquidated
amount of damages
without proof. BECK’S
THEORY and PRINCIPLES OF PLEADING IN CIVIL ACTION, FIFTH EDITION by I
ISAACS at Paragraph 179. The
plaintiff/1^st
respondent’s claim was for damages for injury in her character
and reputation. The applicant/1^st
respondent challenges the competence of the court to award the amount
of damages without any proof. In this present case, no evidence
was
led to prove the damages suffered by the plaintiff. This is against
the rules of this court, which provides as follows:-

“27
(5) Whenever the plaintiff applies for judgment against a defendant
in terms of sub-rule (3) herein, the court may grant judgment
without
hearing evidence where the claim is for a liquidated debt or
liquidated demand. In
the case of any other claim
the court shall
hear evidence before granting judgment
or may make such order as it seems fit.” HIGH COURT RULES,
1980.

It
is peremptory that evidence - proving the degree of injury and the
quantum must be led.

For
these reasons the application for stay of execution and rescission of
judgment must succeed with costs.
Therefore
the application succeed with costs

K.J. GUNI

JUDGE

Mr R. Thoahlane : For Applicant

Mr Monyako : For 1^st
& 2^nd
Respondents

Mr Letsie : For 3^rd
Respondent