IN THE HIGH COURT OF LESOTHO
In the matter between:-
STANDARD LESOTHO BANK LTD APPLICANT
ILECK MAHOMED RESPONDENT
Date of Hearing : 5 April 2011
Date of Judgment : 5 April 2011
CORAM : MR ACTING JUSTICE J.D. LYONS
Mr. Mpaka for (Applicant) Respondent
Mr. Mahlakeng for (Respondent) Applicant
LYONS J. (AGT)
On 10 November 2010 both counsel appeared before this court. A pre-trial conference was set for 10 February 2011. The trial was set for 22 and 23 February 2011. This was by consent.
The Respondent (applicant to this application) attended neither.
The Plaintiff, on trial, and on consideration of Rule 41 (1), took judgement on default of appearance. The Court read the pleadings i.e the papers of record and granted the judgment in default of appearance. The Court granted what can be termed an administrative judgment. It was not asked to have the plaintiff prove his claim ‘so for as the burden of proff’ was upon him (r 41 (1)) and hence made no determination as to whether or not the plaintiff had discharged that burden.
The judgment was sealed on 23 February 2011.
The respondent/applicant (Mahomed) applied to rescind the judgement.
I have before me the following material:
(i) Judgment sealed 23/2/2011
(ii) Notice of Motion for recission filed 25/02/2011
(iii) Affidavit of I. Mahomed filed 25/02/2011
(iv) Affidavit – reply of Lana Kok
(v) Affidavit – reply of I Mahomed filed 4/4/2011
There ia preliminary matter.
By Notice of Motion filed on 1/04/2011 and supported by an affidavit of T.T. Mahlakeng, Mahomed claims that an irregularity has accured in that the application for recision has not been set down in accordance with Rule 8 (13).
This can be dealt with very quickly.
Mostly the affidavit in support is from Mr. Mahlakeng himself. He is counsel for the applicant, Mahomed. It is inadvisable for counsel to swear an affidavit in his own cause. There have been many pronouncement on this be courts over the years. Counsel should be well aware of the reasons.
Moving on, the preliminary application is misconceived. This is a commercial matter. It has been so designated in accordance with Rule 37A(6) (2009 Rules). Therefore the Commercial Rules apply.
Rule 2 (3) of the 2009 Commercial Rules gives primary to the rights and powers of the Judges and Registrar. Rule 2 (3) (d) permits the Registrar “to fix any date of hearing according to the convenience of the presiding Judge.”
That was done. April 5 was the date convenient to the Judge. If any date so effixed is inconvenient to counsel i.e commercial case, the practice is that the counsel then (with the opponent) approach the Judge for a convenient date.
As it stands int his ------, the preliminary objection fails.
I turn to the application for recission.
The first issue is whether or not the courts functions officio. The order has been signed and sealed.
The short answer is no. This is an administrative judgment. The Standard Bank elected (as is its right) not to proceed with discharging the burden of proof by presenting evidence. Instead it sought and was granted a judgment in default of appearance at trial. The reasons for the judgment was non-appearance.
Having only acted in an administrative sense and not having ruled on the hidden of proof (evidence), the Judge is not functions officio.
The next issue is whether or not the judgment should be set aside and what are the principles on which the court must act.
This is a judgment for default of appearance. The applicant Mahomed has explained his reasons for his non-appearance. Mr. Mahlakeng accepted that this client had been uncorrectly advised. This led to Mahomed non-appearance.
Mahomed applied for rescission promptly. The principle to be applied here is slightly different from the instance where there is jugment in default of a defence. In that case, the applicant for recission must show a bona fide defence.
In the present case, the applicant (Mahomed) has filed his defence (plea). It is thus accepted, for arguments sake, that it is a bona fide defence. This is not to comment on its merit – just on its good faith. It is a defence filed in good faith – at least on the material before the court. Thus the requirement to satisfy the court as to good faith in the filing (entering of a defence (plea) has been done. However, as Mr. Mpaka pointed out, an applicant for recission of a judgment made as a result of non-appearance at trial, the test is similar, but based on a difficult premise. The court, before granting the recission, must be satisfied that the applicant for recission is not abusing the process by deliberately failing to attend trial and thereby wasting time and putting off his ultimate demise.
To satisfy itself on this front, the court looks to the reasons for the non-appearance and the merit of the defence (plea). But it must not be an exhaustive examination. It is just a cursay look at the circumstances. The court has to achieve a balance between allowing an abuse of process or denying the right to be heard. If the balance is fine, it is best to err on the side of the right to be heard.
Now the excuse given by Mahomed holds down to him getting some incorrect advice. There are instances where courts have denied a recission application where the excise offered is one relating to the conduct of counsel. My view is that caution needs to be exercised here. It is well and good for a court to tell a party to look to his lawyer for relief. But there must be some culpability of the lawyer that makes relief a prospect. Otherwise the Court may be sending a party away with no prospect of obtining justice in the ultimate wash up.
I appreciate Mr. Mahlakeng’s candour but I think he has been a bit harsh on himself. I see the advice given(and on which Mahomed relied on – to his detriment) to be more of a mis-understanding rather than wrong. We are still in the teething slages of the Commercial Division. I sense the misunderstanding arose from that. I don’t see that Mahomed’s reason for non-appearance can be said to be evidence of abuse of the court.
Turning to his defence (plea) the court must only look at this in a cursory fasion. For the court to conclude that the defendant (Mahomed, in this case) was really indulging in an abuse of the court, then his defence (plea) has to be of such poor quality as to be subject to summary dismissal. It has to fall into the category of hopeless. It may appear to be looking in strength or even a long-shot. It is surprising though how sometimes such pleas, when expanded and fleshed out on trial suddenly present with the teeth of a tiger! To be refused a rescission in this case, the defence (plea) must readily be seen to be fanceful, hopeless or whatever other word one may use to get the message across that it does not stand a snow hall’s chance in Hell.
I have looked at Mahomeds’ plea. It does not, on cursory examination, fall into that latter category.
Accordingly I cannot say that his actions constitute an abuse of process and a cunning attempt to avoid the trial. Granted his counsel has said the bank can expect a tough fight- but that is not to say Mahomed is avoiding it to the point of abusing the process.
I tend to think it best (in these circumstances) to err on the side of the right to be heard.
The final issue’s one relating to prejudice. Having considered the other issues, the court must be mindful of the position of the party holding the judgment. If (given a satisfactory finding on the previous issues) it cn be said that the respondent to the recission application has suffered no greater prejudice than can be compesated for with a costs order, then the recission application should be granted subject to costs.
In the final analysis, I grant the recission application. The applicant (Mahomed) is to pay the costs of this application and the costs thrown away ont he trial/hearing and obtaning of the judgement.
Mr. Mahlakeng raised a point inlimine. He argued that because Mr. Mpaka had not filed a Notice to oppose to the Notice of Motion of 1 April 2011 (the Rule 8 (13) argument), he should not be heard on that application and it should proceed unoppored.
I do not agree. As Mr. Mpaka put it, he has noted his opposition to the main application (the recission) and it should thus be taken that the notice so given applies to all matters ancilliary to that main application. I think that is the correct approach. Even if not so, Rule 59 (2) should be applied to overcome any technical error. The interests of justice require that Mr. Mpaka be heard. It is as simple as that.
After discussion with counsel, this matter will go for trial on the 6 and 12 October 2011. There will be a review on 1 September to see how it is going.
I thank counsel for their assistance.
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