CIV/T/207/81

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

TERRENCE
CEPHAS MUSIYAMBIRI Plaintiff

V

DAVID
SELLO MOLAPO Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 20th day of August,
1982.

This is
an application for setting aside a judgment granted by this Court.

A summons
was issued on the 6th August 1981 and service thereof was effected
personally on the 31st August 1981. Notice of Appearance
to defend
the action was served on the plaintiff's attorneys on the 14th
September 1981. Nothing further was heard from the defendant.

On the
26th January 1982 plaintiff's attorneys served upon the defendant
lawyers a notice in terms of Rule 26 i.e. requiring him
to deliver
his plea within three days of the delivery of the said notice. There
was then an exchange of two or three letters, all
to the effect that
the defendant was still being traced and extension of the time
mentioned being also requested. (The letters
form annexures to the
present papers before court)

On the
15th February 1982 the matter was heard in this Court. Since damages
were being claimed, viva voce evidence was led. Although
the defence
had been served with the notice of set down for the trial, they made
no appearance. Judgment,

2

as
already referred to earlier, was given in favour of the plaintiff.

On the
undated application before Court but which on the face of it was
served on the plaintiff's attorneys on the 20th April 1982
and that
the application itself would be "made on behalf of applicant on
13th day of August 1982," in his affidavit,
the defendant does
not tell the date when he came to know that judgment had been granted
against him. He says that he went to Johannesburg
without informing
his lawyers.

There are
two important things which the defendant has not shown in this
application :

Firstly,
the defendant has disclosed no defence to the Respondent's
allegations. There is nothing which he has alleged which can
dispel
the idea that his application is not made solely for delaying the
respondent's claim.

The
respondent has not given a reasonable explanation of his default.
Surely he knew that the plaintiff had lodged a claim for damages

against him before he "went" to Johannesburg. A reasonable
man would have kept constant communication with his lawyers
and not
behaved as though he could hold the plaintiff at ransom, render him
inoperative until he (the defendant) decides to resurface
from his
hiding place. (See Trant v Plumbers (Pty) Ltd. 1949(2) S.A. 476(0)
Khiba v Lesotho Electricity Corporation.. 1980(2) L.L.R.
392. Ntisa &
Others v Fiee. 1980(2) L.L.R. 533).

The
unavoidable conclusion is that the applicant has failed to show a
good cause.

Secondly,
Counsel for the plaintiff has submitted that this application is
faulty as no security for costs has been paid, in terms
of Rule 26
(6)(b) of this Court.

3

Now Rule
26 (6)(b) reads as follows :

"The party so applying must furnish security to the satisfaction
of the Registrar for the payment to the other party of the
costs of
the default judgment and of the application for recission of such
judment." (My underline).

To my
observation the applicant has no choice but to furnish security the
amount of which is determinable by the Registrar. The
use of the word
"must" in my view is used deliberately. It is imperative
that the applicant furnishes the security for
costs in terms of the
above sub-section. (For the word "must" it can substituted
the word "shall" and for the
meaning of the latter word see
s. 14 of Interpretation Act 19 of 1977). The non-satisfaction of this
sub-section, if my observation
is acceptable, means that the
application cannot be entertained by the court until that defect has
been corrected; but in very
serious cases, such as where the matter
is left hanging in the air for an unreasonably long time, the
application for recission
of default will be dismissed because in
such circumstances it would be rightly said that the applicant
isemploying delaying tactics.
In this application the applicant
received the respondent's heads of argument on the 24th May1982
wherein this specific point of
payment of security for costs was
canvassed but nothing was done in that direction till the 10th June
1982 when the application
was struck off the roll. There had been
plenty of time within which to rectify the position if the applicant
was really serious
about the prosecution of his application. After
notification that execution was proceeding against the applicant,
only then did
the applicant pay the security of costs as required by
the Rules, and this was during the middle of July 1982, almost three
months
after the launching of the application. In future the

4

Registrar
will not accept any notice of set down in similar applications where
there has been no compliance with Rule 26(6)(b).
The Rules of Court
are meant to be obeyed and it will result in disaster if they are
not. In view of the factors discussed above
it cannot be said that
the applicant came anywhere near discharging the onus on him. He
infact even compounded his errors, by not
complying with the Rules of
this Court which was in itself, disastrous.The application is
dismissed with costs.

JUDGE

For the
Applicant : Mr. Modisane

For the
Respondent : Mr. Moiloa.