CIV/T/425/89

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

ABRAHAM
WEINERMAN Applicant

and

BARCLAYS
BANK PLC Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 11th day of
December. 1990.

This is
an application for rescission of a default judgment, made in terms of
Rule 45 (1) of the High Court Rules 1980. on the ground
that it was
erroneously granted. It is alleged that it was granted in the
mistaken belief that there had been proper service on
the present
applicant.

It is
common cause that the applicant was a director of a company known as
Jeantex (PTY) Limited which was placed under provisional
liquidation
on the 30th August, 1989. It means that on the day the company was
placed under liquidation, the applicant ceased to
be its director.
Gower says in his Modern Company Law

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"Perhaps
the most important rule of all is the principle of company
liquidation, namely that on winding up the board of directors
becomes
functus officio and its powers are assumed by the liquidator. As we
have seen, it is those in control who have the power
to cause harm,
i.e. generally the directors, or someone for whom they are nominees.
Their removal is therefore almost invariably
an essential preliminary
to any remedial action, and this removal automatically occurs on
liquidation."

(See
Attorney-General v. Blumenthal, 1961 (4) S.A. 313).

The
summons in the main action was served on the 26th September, 1989 at
the applicant's domicilium citandi et executandi mentioned
in the
summons as 10, Thetsane Industrial Estate, Maseru. Another copy of
the summons was served at the business address of the
applicant which
given to the deputy sheriff as c/o. Jeantex (PTY) Limited, 15
Thetsane Industrial Estate, Maseru. He served the
applicant at that
address by leaving a copy of the summons with a Mr. Zohar Cohen, a
person apparently above the age of 16 years
and apparently in charge
of the premises in that he was the Manager of Jeantex (PTY) Limited
(in provisional liquidation).

The first
question to be decided is whether our Rules provide for service of
summons at a party's domicilium citandi et executandi.
The various
methods authorised by our Rules as set out in Rule 4(1) as follows:-

"(a)
By delivering a copy of the process personally to the person to be
served: Provided that where such person is a minor
or a person under
legal disability, service shall be effected upon the guardian, tutor
or curator of such minor or person under
disability.

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(b) By
leaving a copy of such process at the place of business or residence
of the person to be served or of the guardian, tutor
or curator
aforesaid with the person who is apparently in charge of the premises
at the time of delivery and who is apparently
of the age of 15 years
or older.

Provided
that where such place of business or residence is a building other
than a hotel or boarding house or hostel, which boarding
house is
occupied by more than one person or family, "place of business"
or "residence" means that portion
of the building occupied
by the person who is to be served.

(c) By
delivering a copy of the process at the place of employment of the
person, guardian, tutor or curator to be served to some
person
apparently of the age of 16 years or older and apparently in
authority over the person to be served or over the guardian,
tutor or
curator of such person."

Sub-rules
(d) to (h) deal with services upon companies, partnerships, churches,
local authorities and the Government of Lesotho
or any Minister of
the Government.

It is
very clear from the Rules stated above that they do not provide for
service at the applicant's domicilium citandi et executandi
and the
service at that address was therefore contrary to the Rules of this
Court. It was null and void.

The
second service was at an address alleged to be applicant's place of
business. Mr. Edeling, applicant's Counsel, submitted that
to the
respondent's knowledge, the applicant had no place of business within
Lesotho, and was not within Lesotho when the summons
was served, and
these important facts were withheld

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from the
Court. The company previously had a place of business. but applicant
was merely an employee carrying on the company's business.
He
submitted that a place of employment is not a place of business. In
Smith v. Smith, 1947 (1) S.A. 474 (w) the headnote reads
as follows:-

A person who is employed by another at a certain place has not got
his place of business at that place.

A return
of service on a defendant who had been cited as "a learner
miner, No. 11 Shaft, Rand Leases", read as follows:
"This
is to certify that on 13th December, 1946, after failing to find
defendant personally, I handed a copy of the summons
to Mr. J.F.,
Chief Paymaster at Rand Leases G.M. Co., Florida, and at the same
time explained the nature and exigency thereof to
him."

Held,
that the service was bad."

(See also
Lewis v. Tosseau, 1913 T.P.D. 338)

In the
present case the applicant was a Director of Jeantex (PTY) Ltd. whose
address was at 15, Thetsane Industrial Estate, Maseru.
That address
was the business place of the company and not of the applicant who
had, at the time of the service of the summons,
ceased to be its
Director. That place could no longer be regarded as the applicant's
place of employment because the company was
in provisional
liquidation and he had ceased to be its employee. It follows that the
second service was also bad.

Rule 4
(6) provides, inter alia, that if the person on whom service is to be
effected is not within Lesotho the provisions of Rule
5 shall apply.
Rule 5 provides for edictal citation. It is

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common
cause that at the time of service of the summons the applicant was
not within Lesotho and that the respondent was aware of
this. No
reason has been advanced why the respondent did not make an
application in terms of Rule 5. The respondent's attorney
knew that
the applicant no longer had his place of employment at the premises
of a company in provisional liquidation and that
the Rules do not
provide for service at the applicant's domicilium citandi et
executandi.

Mr.
Edeling submitted that it is the duty of a plaintiff who knows of a
fact which may influence the Court to grant or not to grant
an order,
to disclose the fact, in any event where there is no appearance for
the other party (Schoeman v. Schoeman, 1927 W.L.D.
282 at p. 283). He
submitted that it is the applicant's case that the attorney or
counsel who moved for the judgment should have
disclosed
non-compliance with the Rules to the Court, in compliance with his
duty of the utmost good faith to the Court as its
officer. I agree
with the above submissions but it must be remembered that sometimes
an attorney or advocate can make a wrong judgment
or can misinterpret
a Rule. It is, therefore, necessary that before the client of such
attorney or advocate can be punished by
an order of costs on the
attorney and client scale it must be quite clear that the information
was deliberately withheld from the
Court. In the present case it
seems to me that there is a possibility of a misunderstanding or
misinterpretation of the Rules concerned.

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The last
question is whether having proved that the judgment was erroneously
sought and erroneously granted, the applicant still
has to satisfy
the Court that he has a bona fide defence to the action. In
Tshabalala and another v. Peer, 1979 (4) S.A. 27 at
p. 30 Eloff, J.
said:

"Counsel drew attention thereto that, unlike other Rules dealing
with condonation of procedural intro­missions and with
rescission
which state that relief may be granted "upon good cause shown"
(Rule 31 (2) (b) "on good cause shown".
Rules 27 (1), 27
(3) and 49 (6)), Rule 42 (1) simply states that "the court may".
The Rule accordingly means - so it
was contended - that, if the Court
holds that an order or judgment was erro­neously granted in the
absence of any party affected
thereby, it should without further
enquiry rescind or vary the order. I agree that that is so, and I
think that strength is lent
to this view if one considers the
Afrikaans text which simply says that:

"Die hof het nevewens ander magte wat hy mag he, die reg om
...."

I
entirely agree with the learned Judge, Section 42 (1) (a) of the
South African Rules is the same with our Rule 45 (1). I shall

therefore not deal with the merits of the main action.

In the
result the application is granted as prayed with costs.

J.L.
KHEOLA

JUDGE

11th
December, 1990,

For
Applicant - Mr. Edeling

For
Respondent - Mr. Fischer.