Summary
Rescission application – brought in terms of Rule 45 of the High Court Rules 1980 – on grounds of non-compliance with Rule 27(3) – Judgement erroneously granted – requirements of rescission under Rule 45 restated – applicant need not establish sufficient cause - application granted.
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/41/2020
In the matter between
LISEMA ABRAM LEBUSA APPLICANT
AND
TOHLANG PEEA RESPONDENT
JUDGEMENT
Neutral Citation: Lisema Abram Lebusa v Tohlang Peea [2022] LSHC 6 Civ (12 April 2022)
CORAM: BANYANE J
HEARD: 09/12/21
DELIVERED: 12/04/22
ANNOTATIONS
Cases cited
Lesotho
South Africa
Subsidiary Legislation
Books
BANYANE J
Introduction
[1] This is an application for rescission of a default judgement granted by this Court on the 18th October 2020, on grounds that it was erroneously sought and granted. The applicant further seeks upliftment of the bar to enable him to defend the respondent’s claim in the main.
Background
[2] The respondent (as plaintiff) sued the applicant (as defendant) for damages for repairs of his vehicle arising from a collision which occurred sometime in September 2018 between his vehicle and applicant’s. For convenience, I will refer to the parties as they are in the main action. Following service of the summons, a notice of appearance to defend was filed but no plea was thereafter filed. Subsequently the defendant was, on the 12th of May 2020 served with a notice to file plea within three days of receipt thereof. This was not done. He was consequently barred from doing so. A notice of bar was served and filed in this regard on the 16th June 2020. The plaintiff thereafter applied for default judgement and set the matter down for hearing. On the appointed date, judgement was accordingly granted after hearing the plaintiff’s oral testimony.
The rescission application
[3] The nub of the defendant’s case in the rescission application is that the judgment was erroneous sought and granted against him because he was not notified of the hearing date contrary to rule 27(3). He contends in the second place that the evidence given by the plaintiff at the hearing of the matter was insufficient to support his claim. He contends in this regard that the police officer who attended the scene of crime ought to have been led and three quotations, instead of one, ought to have been furnished in support of the plaintiff’s claim. He concluded on this basis that he has a bona fide defence to the claim, which carries with it prospects of success.
[4] The plaintiff vigorously opposes the application. In his answering affidavit, he raised the following as points in limine; namely; a) lack of urgency; b) the defendant’s lack of bona fides in bringing this application and; c) what he terms “wrong cause of action”. Under the latter, the plaintiff contends that the application is guised as a Rule 45 rescission when its body canvasses grounds for rescission under Rule 27 of the Rules of this Court. His alternative argument is that no error is shown to exist in the seeking nor granting of the default judgement.
[5] On the merits of the application, he avers that the defendant has not canvassed what his defence on the case, particularly in the light of his conviction for negligent driving by the Thaba-Tseka Magistrates’ Court. He further denies that he relied on a single quotation for his claim but conversely contend that he tendered several receipts during trial in an endeavor to prove his claim for damages.
The parties’ Submissions
[6] The defendant’s grounds for rescission are two-pronged as shown earlier. The first and pivotal one that must be addressed right away is the plaintiff’s failure to comply with the mandatory requirements of Rule 27(3) in terms of which a party seeking default judgement, must, where the defendant has entered appearance to defend but barred from delivering their plea, notify him / her of the hearing date of the matter.
[7] The defendant’s counsel’s primary contention is that judgement should not have been granted in circumstances where there was non-compliance with Rule 27(3). He cited the case of Lesotho Nissan (Pty) Ltd v Katiso Makara C of A (CIV) No.72/14 in support.
[8] The plaintiff’s counsel advocate Masupha conversely contended that the defendant failed to establish any error in the seeking and granting of the default judgement. He is of the view that despite lodging the application pursuant to rule 45, it is framed as a rule 27(6) application, whose requirements, he similarly submitted, have not been established. He referred the Court to Chetty v Law Society, Transvaal 1985 (2) SA 756 (A), cited with approval in Thamae and Another v Kotelo LAC (2005-2006) 283 for requirements of a successful application for rescission.
[9] According to the plaintiff’s counsel, the application is intended to waste time and defeat the plaintiff’s claim because the defendant not only failed to proffer a satisfactory explanation for his default, but has also failed to demonstrate any bona fide defence to the plaintiff’s claim and thus failed, dismally, to prove the requirements of rescission.
Issues
[10] Two issues that must be determined are whether rescission is properly sought under Rule 45(1)(a) for non- service of a notice of hearing date. If the answer be in the affirmative, the next issue is whether good cause must be established in terms of this rule. I deal with them in this order.
Whether judgement had been erroneously sought and granted within the meaning of Rule 45(1)(a).
[11] Rule 45(1)(a) provides for rescission of an order or judgement erroneously sought or erroneously granted in the absence of any party affected thereby. In order to determine whether the rescission application in question is a matter which falls to be dealt with under Rule 45(1), it is helpful to reproduce the provisions of this rule in their entirety, although the focus is placed on Rule 45(1)(a). It reads;
“45(1) The Court may, in addition to any other powers it may have mero motu or upon the application of any party affected, rescind or vary-
(a) an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;
(b) an order or judgment in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission;
(c) an order or judgment granted as a result of a mistake common to the parties.”
[12] The Court of Appeal in Leen v First National Bank C of A (CIV)16A of 2016 considered the meaning of error contemplated under this Rule 45(1)(a). It held in para 28 that;
“A judgment is granted in error if, as stated in Nyingwasa v Moolman 1993(2) SA 508 at 510 at the time of its issue there existed a fact of which had the Judge been aware, he would not have granted the judgment.”
[13] In Lesotho People’s Congress & Ors v Makharilele C of A (CIV)) 76/2017, it was held that where notice of proceedings to a party is required and judgement is granted against such a party in his absence without notice of the proceedings having been given to him, such judgement is granted erroneously. See also Mokatse v Manager of Boliba Multi-purpose Co-operative and Another LAC (2009-2010) 384 where the Court held that judgement may be granted against a defendant without notice to him only if he is in default of entry of appearance to defend and that failure to notify him of the hearing date on grounds that the notice (of intention to defend) was defective means the judgement was erroneously sought and granted. See also Fraind v Nothmann 1991 (3) SA 837 (WLD).
[14] It is common cause between the parties in this matter that the rule 27(3) notice for application for judgement or hearing date was not given to the defendant herein. This rule provides that;
“27(3) Whenever the defendant is in default of entry of appearance or is barred from delivery of a plea, the plaintiff may set the action down for application for judgement. When the defendant is in default of entry of appearance no notice to him of the application for judgement shall be necessary but when he is barred from delivery of a plea not less than three days’ notice shall be given to him of the date of hearing of the application for judgement.”
[15] This rule, as stated in Lesotho Nissan v Katiso Makara (supra) is a procedural bar to obtaining default judgement where notice has not been given to the defendant. It is therefore concludable, on the basis of the authorities cited above that the impugned judgement has been sought and granted in error. To put it differently, it is clear on the facts of this matter that the impugned default judgement was erroneously granted because no notice to the defendant was given in terms of Rule 27(3), yet he had entered an appearance to defend. This was however, not brought to the attention of the Court when judgement was sought against the defendant. The next question to be considered is whether on this ground alone, the judgement must be set aside.
Having established the error, should default judgment be set aside on this ground alone?
[16] To answer this question, a distinction between grounds for rescission under Rule 27(6) and under Rule 45 must be highlighted. Under Rule 27(6), it is trite that the applicant must show good cause. In order to show good cause, he/she must; a) give a reasonable explanation to show that he was not in willful default; b)must establish that the application is brought bona fide and not merely with the intention to delay the plaintiff’s claim; c)He must show that he has a bona fide defence to the plaintiff’s claim, it being sufficient if he sets out averments which, if established at the trial, would entitle him to the relief sought. He need not deal with the merits of the case or produce evidence that the probabilities are actually in his favour. See Thamae and Another v Kotelo and Another LAC (2005-2006) 283 at 290-91 where the Court of Appeal held that in determining whether good cause in shown, the court exercises a discretion upon objective consideration of all facts and circumstances of a case. These include the degree of lateness, the explanation therefore, the prospects of success and the importance of the case.
16.1 These factors, I must mention, are interrelated and must not be considered in isolation from all the others because a good defence might outweigh the lack of explanation, and a slight delay and 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. See also Senone v Senone C of A (CIV) 48/11, Lehana Mandoro v Libe Mohono CIV/A/26/14, and Leen v First National Bank (supra). It is also been stated that a party showing no prospects of success will fail in an application for rescission no matter how reasonable and convincing the reason for his default Chetty v Law Society Transvaal 1985)2) SA 756 (A) at 765.
[17] I turn now to the Rule 45 requirements in order to answer the question whether good cause must be shown where an application for rescission in made under Rule 45.
[18] This issue was considered in Rajah v Monese & Another LAC (2000-2004) 736 at 741 B-C, where it was held that once the Court holds that the judgement or order was erroneously sought or granted in the absence of the respondent, the order should, without further inquiry be rescinded. See also Mokatse v Manager Boliba Savings and Credit & Another (supra), where the Court of Appeal held that an applicant for rescission under Rule 45, need not prove the Rule 27 (6) (c) requirements.
[19] It is clear in the authorities cited above that an applicant need not establish good cause under Rule 45. This means he is not required to show that his default was not willful. It follows that the inquiry ends with the applicant’s ability or otherwise to satisfy error in the seeking and granting of default judgement.
19.1 It is also clear that after appearance to defend is entered and notice of bar served, the defendant is entitled to a notice of trial. The present matter was therefore irregularly set down because the notice of trial was not served on the defendant. Consequently, the default judgement must be set aside on this ground alone.
Request for removal of bar
[20] The applicant has further sought an order removing the bar. It is common cause between the parties that court process was to be received by Advocate Thoahlane’s chambers in Maseru, who was per agreement supposed to communicate this to the defendant’s lawyer (Advocate Makhoba-Khobe) whose chambers are in Mafeteng. According to the applicant, his representative Mr. Makhoba-khobe was never notified of the notice to file plea nor notice of bar. He adds that due to covid-19 related restrictions on movement, he was disabled from travelling to Maseru to check on the progress of his case.
[21] The question that must be answered is whether under these circumstances, the bar must be lifted. To answer this, I turn to guiding legal principles.
[22] Upliftment of the bar is not just a mere matter of course. It should not be done merely for the asking. Good cause must be shown. Gordon and Another v Robinson 1957(2) SA 549 at 551.
[23] Good cause has not been defined with precision but it has been held that the court has a wide discretion in such applications and in the excise of that discretion, some of the major considerations include; a) a reasonable explanation for the applicant’s delay in filing; b) the application is bona fide and not made to delay the other party’s claim; c) there has not been a reckless or intentional disregard of the Rules of Court; d) the applicant’s case is not ill-founded(without foundation) and lastly, the other party is not prejudiced to an extent which cannot be rectified by a suitable order as to costs. See Smith No v Brunner No & Another 1954(3) SA 352. See also Herbstein & van Winsen, The civil practice in the Supreme Courts of South Africa (5th edition) p730-732.
[24] An accurate and detailed account of the causes of the delay must be set out and where non-compliance with the rules is time related, the party seeking the court’s indulgence must state the date, duration and extent of any obstacle (Herbstein and Van Winsen, (5th ed) p731), Uitenhage Transitional Local Council v SA Revenue Services 2004(1) SA 292 at 297.
[25] In Morgan v Wright 1958(3) SA 728 at 730-733, two sets of attorneys might have been negligent. In dealing with removal of bar application, the Court held that it had a wide discretion under the relevant rule to grant relief to a party who has been barred from pleading through negligence of his attorneys. In Smith NO v Brummer (supra), it was also held that lack of diligence or negligence on the part of a party’s legal representative is not necessarily a bar to the granting of the relief.
[26] In the instant matter, it is not disputed that failure to file within the period prescribed by the rules was attributable to remissness of the two sets of lawyers involved in the matter. Although they have been informed that the plaintiff was required to file a plea, no attempt was made to do so even when the notice of bar was filed. No amount of negligence has however, been attributed to the applicant / plaintiff. This means that he has satisfied two requirements; namely, he has given a reasonable explanation for his failure to timeously file and no reckless or intentional disregard of the Rules on his part. Although I am not persuaded (at this stage) that the applicant’s case in the main claim is strong, no prejudice will be occasioned by the granting of the application because rescission of the default judgment must, in terms of the authorities cited, be granted and defendant be given an opportunity to place his defence before Court.
Order
[31] In the result, the following order is made;
a) The default judgement granted by this court on the 18th of October 2021 is rescinded and set aside.
b) The bar is lifted, and applicant is granted leave to file his plea within 7 days of this ruling.
c) Each to bear its own costs
P. BANYANE
JUDGE
For Applicant: Advocate Thejane
For Respondent: Advocate Masupha.
