IN THE HIGH COURT OF LESOTHO
In the matter between:-
PAUL LETLALA MABATHOANA APPLICANT
NEW CO INVESTMENT (PTY)LTD 1 RESPONDENT
SEEISO BERENG SEEISO 2 RESPONDENT
EST. LATE MOHLOMI MONAHENG 3 RESPONDENT
MOTALE MOSUNKUTHU 4 RESPONDENT
REGISTRAR OF DEEDS 5 RESPONDENT
COMISSIONER OF LANDS 6 RESPONDENT
MASTER OF THE HIGH COURT 7 RESPONDENT
ATTORNEY GENERAL 8 RESPONDENT
Date of Hearing : 10 May 2011
Date of Judgment : 10 May 2011
CORAM : MR ACTING JUSTICE J.D. LYONS
Ms Makhera for Applicant (respodnent to original application)
Ms Hlaoli for Respondent (applicant to original application)
Recission of default judgment – rule 8(8) – irregularity – non-compliance.
LYONS J. (AGT)
This is a recission application. I heard it on 10 May and granted the application. Herewith (as promised) are my reasons.
On 12 July 2005 the respondent herein (Paul L. Mabathoana) filed an application claiming that an agreement for the transfer of land between he and Newco Instment (Pty)Ltd had been breached. This agreement was for the sale of four blocks of land for the total price of M60,000, M15,000 of which had been paid as deposit. The agreement was dated 17 March 1994. The respondent herein alleged that the balance of M45000 was never paid.
In his originating application the respondent applied for cancellation of the agreement and cancellation of the registration of the Deeds of transfer. Curiously he failed to explain how the Deed of transfer came to be signed by him or his attorney and subsequently registered when, as he alleged, he had not been paid. As an alternative he claimed for payment of the M45000 balance at 18% interest.
On 13 February 2006 (7 months after filing his originating application), the respondent herein obtained judgment in default of appearance. He took judgment for cancellation of the agreement, cancellation of the registration and consequential declaratory relief that he was still the owner of the land.
The applicant herein (‘Majobo Monaheng) is the widow of the late Mohlomi Monaheng. She is, I accept, the representative of the estate of her late husband. The estate is the third respondent to the original application.
Although she does not say so, I gather that Mrs Monaheng brings the application on behalf of both the Estate and Newco Investment (Pty) Ltd. I note that the founding affidavit supporting the original application describes the Estate as a ‘founding’ shareholder of New Co Investments. I note also that the late Mr. Monaheng was a director of that Company (see the Deeds of Transfer exhibited to ‘M’e Monahengs’ affidavit). She deposes that the estate is the lawful holder of the rights to the subject properties. She deposes that she (as representative of the estate) was neither served with the original process nor with the judgment. She deposes that it was only in December 2009, when she sent her son to check in the Deeds Registry prior to carrying out plans to develop the land, that she discovered that registration of the transfer from the respodnent herein had been cancelled.
Crucially ‘M’e Mohaheng places before the court 4 cheques drawn on the account of M. Monaheng at the Ladybrand branch of the Standard Bank. These cheques are dated 4 August, 5 September and 30 December 1994. The final cheque is dated 31 January 1995. The total amount is for M45000.
The payee of these cheques is Mr. P. Mabathoana. The cheques are endorsed on the back thereof as receipt for payment by “P.L. Mabathoana” or “Paul Letlala Mabathoana”. The signatures (endorsements) show a remarkable similarly to the signature on the respondent’s founding affidavit in his original application.
The material presented by the applicant herein offers a total defence to the original application.
Counsel for the respondent advised the court that she had no instructions. Whilst it is not a matter that she has personal conduct of (and cannot warrant her instructions) she quite properly advised the court that she was informed that he (Paul L. Mabathoana) could not be found. I appreciate her directness. She could offer the court no further assistance.
I note that a Notice of Intention to oppose was filed on 12 January 2010. I also note that on 19 April 2010 an appearance was made for and on behlf of the respondent herein. According to the judge’s file note, no mention was made of “having no instructions”.
I am not prepared to further adjourn this matter. The attorney for the respondent has had over 12 months to find his client. I accept the counsel for the applicant’s submission that Mr. P. Mabathoana is a reasonably prominent identity who, in normal circumstances should be easily located. In any event no injustice will be done to him if I proceed. He can come before the court at trial and explain the cheques the applicant exhibits.
I am satisfied that the applicant has established that a bona fide defence exists in that the respondent may have been paid.
The question of service (or rather non-service) of the original application raises some interesting points.
So far as the Estate is concerned, the Deputy Sheriff’s return of service says that the respondents to the original application were served “with notice of application where all respodnents have received their copies and signed original copy.” This return is dated 18 July 2005.
I am unable to dicern from the signatials on the original application which, if any, is the signature of the Estate acknowledging service.
No other detail of service (such as where, and on whom) is given. In the circumstances I accept the Estate was not served.
This very point was raised by the Judge on 12 January 2006 regarding New Co Investment. The applicaiton then before the Judge was for judgement by default. This was brought before the Judge by Notice of Set-Down filed 6 December 2005. (Rule 8 (8) H.C. Rules).
On appearance the Judge noted that “the Court was not satisfied that No.1 Respondent (New Co Investment) was served as the return of service shows they were served and they signed.” Apparently the Judge could not find where they signed.
The Judge ordered that the No1 Respondent (New Co Investments) be properly served and ordered the hearing date to be 13 February 2006.
The effect of the order (and as found by the Judge) was that New Co Investments had not been served. Thus the Notice of Set down was invalid as against New Co Investments. Rule 8 (18) is clear. Before a Notice of Set Down can be filed, the respodent to an application must be served.
New Co Investments was subsequently served at what was purported to be its registered office, Messrs Du Preez, Liebetrau. The date of service was 6 February 2006. A signature adknowledging service (but with no other identifying marks) dated 6 February 2006 appears on the original application.
Assuming that the signature is that of a person at the registered office Rule 8 (8) requires:
In such notice the applicant shall appoint an address within 5 kilometres of the office of the Registrar at which he will accept notice and service of all documents in such proceedings and shall set forth a day not being less than five days after service thereof on the respondent on or before which such respondent is required to notify the applicant in writing whether he intends to oppose such application, and shall further state that if no such notification is given the application will be set down for hearing on a stated day, not being less than seven days after service on the said respondent of the said notice. (my emphasis)
There is no mention on the original applicaiton of the prior Notice of Set Down filed 6 December 2005. That Notice is invalid as against New Co. Investments as it had not been previously served with the original process.
Even if it were valid, no notice was given and served of the new date of hearing set by the Judge – 13 February 2006. This was the stated day as required by the rule. As the judge ordered that the matter return on 13 February for determination, it was a mandatory requirement that NewCo Investments be served with notice of this date. It was the original applicant’s (respondent herein) responsibility to do this. It was not done. There is no evidence that notice was given. Thus when counsel told the judge on 13 February that service had been effected, he was mistaken. As no notice was given, service was irregular.
Further, as service was on 6 February, there was short notice. The time period no less than seven days afterservice (as required for a Notice of Set Down) does not include Sundays. 6 February 2006 was a Tuesday. 12 February was a Sunday. The ‘no less than seven days’ required by Rule 8(8) expired on the 14th February. The application was brought 2 days too early (see the definition of ‘court days’ and ‘days’ in Rule 1 H.C. Rules).
The Judgment against New Co Investment (Pty) Ltd was entered irregularly. The respondent (applicant to the original judgment) failed to comply with the mandatory notice provisions in Rule 8 (8) and as required by the judge’s order.
For the above reasons I set aside the default judgment entered on 13 February 2006.
I grant leave to the defendants (notably NewCo Investments) to defend. The defence (plea) is to be filed within the time limited by the rules.
I adjourn the substantive case to 21 July 2011 at 9.30am for mention and further case management.
In these rather unusual circumstances I defer the question of costs of this application to the trial judge or if the matter does not culminate in a trial, then as further ordered.
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