IN THE HIGH COURT OF LESOTHO
CIV/APN/178/2003
CIV/T/385/95
In the matter between;
MADYKE TŠIU APPLICANT
VERSUS
BETTY CHABANE 1st RESPONDENT
THE MESSENGER OF COURT 2ND RESPONDENT
MAMELLO MEMELA 3RD RESPONDENT
ATTORNEY GENERAL 4TH RESPONDENT
JUDGMENT
DELIVERED BY THE HON. MRS JUSTICE K.J. GUNI
ON 16TH 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 1st 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 1st 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 1st defendant in the above mentioned trial. The plaintiff/1stRespondent claimed in that CIV/T/385/95 the payment from this applicant/1st defendant, of the sum of Fifty Thousand Maloti [M50,000] being damages for injury in her character and reputation. She claimed
against the 2nd and 3rd 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 NOTICETHAT an application will be made to this Honourable Court on the 24th 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:
Dispensing with the Rules of Court pertaining to periods and modes of service of process owing to the urgency of this matter.
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:
Execution of judgment in CIV/T/385/95, which judgment was granted in favour of 1st respondent on 19th day of September 2002, shall not be stayed pending finalization of this application.
The said judgment in CIV/T/385/95 shall not be rescinded and set aside.
Directing 1st respondent to pay costs hereof in the event of opposition.
Granting further and/or alternative relief.
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/1st defendant and the Plaintiff/1st 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/1st 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/1st 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 1st 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/1st 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 1st 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/1st respondent’s claim was for damages for injury in her character and reputation. The applicant/1st 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 1st & 2nd Respondents
Mr Letsie : For 3rd Respondent