IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/345/2007
In the matter between:
SEABATA RAMAISA Applicant
MPHOLENG LETSAPO 1st Respondent
MINISTER OF LOCAL GOVERNEMNT
AND CHIEFTAINSHIP 2nd Respondent
COMMISSIONER OF LANDS 3rd Respondent
REGISTRAR OF DEEDS 4th Respondent
ATTORNEY GENERAL 5th Respondent
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 8th Day of July 2011
1. In this matter the main issue is whether the Applicant (judgement debtor) has made out a good case to be granted rescission of a judgement entered by default against him. In other words, the main question that has to be resolved by the court is whether the Applicant; has firstly provided a reasonable explanation for the default; has secondly proved that the application is bona fide and not made merely to delay the respondent’s claim; and has thirdly shown that he has a bona fide to Respondent’s claim.
2. The Applicant submitted that the balance of convenience and the interests of justice were in favour of granting the rescission application inasmuch as the Applicant had shown good cause and that he had prospects of success on the merits.
3. In the case of Loti Brick v Mphofu and Others this court made it clear that it is sufficient if the Applicant provides an acceptable and convincing explanation for defaulting to defend the matter. Furthermore, legal authority requires an applicant for rescission of a default judgement to show good cause, which is firstly, that he must give an acceptable and reasonable and believable explanation for his default. Second, he must be able to show that he has prospects of success in the merits in the sense of having a bona fide defence.
4. In Wright v Westelike Provinsie Kelders BPK 2001 (4) SA 1165 (C. P. D.) the court indicated that the nature of the reasons given other than explanation by an applicant for rescission of judgement for the failure to defend in accordance with the rules of court may be used to justify its exercise of judicial discretion either in favour of or against allowing the rescission application. The court (on appeal) was interpreting Rule 49 (3) of the Magistrate Courts Rules unless, specifically the phase “or if it is satisfied that there is a good reason to do so” decide that:
“the court was empowered to by introduction of the phase to grant a rescission application if the exigencies of justice required it in exceptional cases notwithstanding the existence of what would previously have been fatal deficiencies in the applicant’s founding papers.”
At page 1181 (para 59) H/I. See also para 54 at G/1.
The court’s discretion is important, in the present case, when regard is had to the aspect of the question whether the Respondent ever had title to the land in dispute. The Applicant submitted that this is an aspect, in the interest of justice, which the court must consider and upon which to exercise its discretion in favour of the Applicant to enable him to defend. This should be so despite whatever procedural deficiencies the court may find in the Applicant’s case. I agreed with respect.
5. In this matter the Applicant contended that he was not duly served with original summons in accordance with the rules of court. As a form of proof he attaches a return of service to that effect. The return of service, which is attached as Annexure “D” to Applicant’s founding affidavit, makes it clear that the Applicant was not served with the original summons. The Respondent contends that the Applicant was duly served and attempts to attach a return of service. Still Applicant contends that the contents of the return is false. Furthermore that it is not clear why this return of service was not filed in court as part of proceedings.
6. Applicant submitted that when the attitude of Applicant was assessed in light of his conduct with regard to the Magistrate Court proceedings filed by the Respondent, which he opposed and are still pending, he has provided a reasonable explanation or on balance of probabilities he could not have been served. It was submitted further that accordingly that chances were very high that he was not served. It was not readily clear why the affidavit of the Deputy Sheriff, who is alleged to have affected service, was not sought. The Applicant submitted that the reason was simple, he would not support the Respondent’s defence. The other important thing was that the Respondent did not even suggest that Applicant was served with the court order.
7. One other aspect, that was disturbing as far as this matter is concerned is that Respondent’s Counsel obtained that default judgement cancelling a certain lease number 13282-829 (which the Applicant calls his own) yet in the summons the Respondent had sought cancellation of lease number 13282-289. This is disturbing because he never sought to amend the summons in accordance with Rule 33. Otherwise Applicant (himself) was able to demonstrate the manner and support with which he ultimately acquired “ministerial consent” and registration of the land lease in his favour.
8. On the other had Respondent attached a form “C” and a minute of Mabote Project supposedly showing his title. Applicant contended that this was much less than a land lease which he (Applicant) possessed and attendant rights. It became clear that on this aspect of bona fide defence alone I would exercise my discretion in favour of allowing the rescission as sought by Applicant. Indeed this matter cries out for ventilation and proper proof from both sides. On this aspect alone I would exercise my discretion in favour of the Applicant.
9. I will therefore conclude that in addition the Applicant has shown good cause and provided a convincing explanation why he did not defend this matter. In support I reiterate the fact that Applicant holds title in the form of a lease and the Respondent does not have a lawful title. Yet he claims ownership rights. I would also conclude that the Applicant has not filed the application merely to delay Respondent’s claim. Indeed there was nothing of record to suggest mala fide on the part of Applicant and therefore in all the circumstances of the case it cannot be suggested that he has no valid defence.
10. When touching on almost every requirement in rescission applications, the court in Melane v Sanlam Insurance Co. Ltd 1962 (4) SA 531 C-F said:
“In deciding whether sufficient cause has been shown, the basic principle is that the court has discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the Respondent’s interest in finality must not be overlooked.”
It is now a well established principle of law that an Applicant who is able to show good cause is entitled to rescission of a default judgement. The court is obliged to consider the totality of all the facts to determine the existence of good cause and no one factor amongst the factors to be proved by the Applicant must be considered in isolation from all the others.
11. In this matter as I found even if the explanation given by the Applicant is found to be wanting there are prospects of success. The Applicant has shown at least prima facie that he is the lawful title holder as clearly shown by the lease. The Respondent has only attached a document which Applicant said in indecisive in showing that he is the owner and/or lawful title holder to the disputed immovable property.
12. In the premises I find that the balance of convenience favours the granting of the rescission application as I have discussed in addition the Applicant has shown that he has not filed the application merely to delay Applicant’s claim.
13. In any event various decisions of this court have shown that the grounds for rescission need not co-exist. If a party proves one of them for example a compelling bona fide defence, then the court can grant the application.
14. This application is accordingly granted and I award costs to the Applicant.
T. E. Monapathi
For Applicant : Adv. Letsika
For Respondents : Adv. Potsane
Judgement noted by Adv. Molati on 08/07/2011
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