CIV/A/10/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

ELLIOT
SETLOLELA Applicant

MOHANOE
MALEFANE Respondent

Before
the Honourable Chief Justice B.P. Cullinan

For the
Applicant : Mr J.P.L. Snyman

For the
Respondent : Miss Ramafole

JUDGMENT

Cases
referred to :

1. (R v
   Van der Merwe (1943) C.P.D. 25;

   
   

2. R v
   Adkins (1955) 4 S.A. 242 (GW) ;

   
   

3. R v
   Ngombe (1964) 3 S.A. 816 (RAI) ;

   
   

4. Mohlakoana
   Mabea & another vs Magistrate of the 1st for Butha-Buthe &
   another CIV/APN/367/91, CRI/A/81/91

   
   

This is
an appeal from a decision by the Resident, Magistrate's Court in
Leribe, granting an application for rescission of a default
judgment.
It can be said therefore that. the Magistrate's decision was
interlocutory and not final see Jones and Buckle 7 Ed. Vol.I
pp
289/290. The question nonetheless arises whether the,Court should
mero motu exercise.

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its
inherent powers of review in the matter. That will depend on all the
circumstances of the case.

The
applicant ("the plaintiff') commenced an action in the Court
below claiming the sum of M1,000, by way of debt, with costs.
Six
months later he applied for default judgment. Some two weeks later
the Attorney representing the respondent (the defendant)
appeared
before the Court and secured an adjournment for two weeks, so that he
might "obtain a brief" in the matter.
Two weeks later, the
plaintiff's Attorney appeared before the Court. There was no
appearance by the defendant or his Attorney and
the Court granted
default judgment. For some reason, which will become apparent, the
defendant had anticipated such default judgment
and more than three
weeks before hand had filed an application for rescission thereof. I
rely here on the Magistrate's-judgment,,
as I can find no trace of
such application on the Court file.

The
plaintiffs Attorney secured the issue of a warrant of

execution
on the same date that he obtained judgment. The writ was not however
served for some ten months, whereupon, seven days
later,-the
defendant's Attorney (a second Attorney) filed another application
for rescission of judgment. I observe that the accompanying

affidavit, however, was not sworn for another two weeks.Two months
later, the defendants Attorney appeard before the Court, and
secured
an adjournment for two weeks, as the application had not been served.
Some two months later the

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plaintiff's
Attorney, but not the defendant's Attorney, appeared before the
Court. The application was adjourned sine die.

Nothing
happened for another fifteen months until in execution of the writ.
Some of the defendant's goods were attached. The application
for
rescission was once more set down, and approximately a month later
the plaintiffs' Attorney (a second Attorney) appeared before
the
Court. There was no appearance by the defendant's Attorney. The
former however was "informed to wait for the Judicial
Officer to
read the whole record." The Attorney however was not in
attendance over an hour later when the defendant's Attorney
(the
third Attorney) appeared and was advised to set the matter down for
another day, being granted costs of the day.

The
matter was set down, over four months later, that is, more than two
years and ten months after default judgment had been granted.
After
hearing argument the Magistrate, in a reserved judgment granted the
application, making no order as to costs. He granted
the application
for rescission on two grounds.

One of
those grounds was in effect, counter to the submissions made by the
plaintiff's Attorney that the defendant was out of time
and there was
no application for condonation before the Court.He there relied on
Rule 1 (1) of Order xxvii of the Subordinate Court
Rules which read,

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"any party to an action in which a default judgment is given may
within one month after such judgment has come to the knowledge
of the
party against whom it is given apply to the Court to rescind or vary
such judgment."

According
to the Magistrate, the Plaintiff's Attorney notified the defendant's
Attorney of the application for default , judgment
one month before
such judgment was granted. That is why the, Defendant's Attorney
filed an application for rescission and appeared
before the Court ex
parte. two weeks before judgment, apparently in the belief that
judgment had been granted. As judgment had
not been granted at that
stage, the application for rescission, supported by an affidavit
sworn before the event, could only be
regarded as a nullity. There is
in any event no papers in respect of any such application for
rescission on the file before me.

The
defendant did eventually, as I have said, file an application for
rescission, but that was over ten months later, after the
writ of
execution was served. In the supporting affidavit he deposed that he
had attended court on the date his Attorney had attended,
that is,
two weeks before judgment was granted. He avers that his Attorney had
said he would inform him (the defendant) of the
next date of hearing.
He does not explain however why he failed to hear the date (two weeks
later) announced by the court. Thereafter
he avers.

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"I was notified by the messenger of Court that default judgment
had been granted against me and I approached (the defendant's

Attorney) who prepared papers for rescission and (I) frequented his
offices for a feedback on the progress of the case and he assured
me
that he was still proceeding with it".

Thereafter
the defendant avers that he was served with the writ of execution,
that is, ten months after judgment. He does not explain
why, when he
knew a judgment had been granted against him, he was content to leave
matters in the hands of his Attorney, for so
long, without any
positive news of rescission, and why he should change Attorney only
when the writ of execution was served. In
this respect the defendant
did not state exactly when he was informed of the judgment by the
messenger of the Court, as one would
have expected him to do. His
affidavit indicates,that some time passed, before the writ was served
upon him. The probabilities
therefore are that the defendant was well
out of time when the application for rescission was lodged. The
Magistrate nonetheless
impliedly found that the defendant had only
learnt of the judgment when he was served with the writ, which is
contrary to the import
of the defendants affidavit, and therefore
held that the defendant was not only out of time. He clearly was out
of time, however,
and an application for condonation should have been
filed.

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In any
event, the prosecution of the application for rescission was a matter
for the defendant. It took another twenty-two months
before the
matter was finally set down for hearing, yet the Magistrate was not
concerned with such delay, which clearly could not
be laid at the
plaintiff's door. The Magistrate nonetheless observed that

"If the learned Counsel (for the Plaintiff) thought the other
side was playing a delaying tectic he ought to have set the
case down
for hearing and ask the Court to dismiss it for (want) of
'prosecution if the other party is missing."

That may
well have been a Counsel of wisdom, but in the matter of delay, the
onus was upon the defendant to satisfy the Court that
there was good
reason therefore. In this respect the Magistrate observed.

"It cannot be said applicant was sitting idle and doing nothing
because if he did he could not have changed Counsels. This
shows he
wanted an Attorney who could work."

On the
papers before the Magistrate, that observation can only be regarded
as an unwarranted assumption, and indeed a most unfair
and improper
one, in respect of the first two Attornies involved.

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Further,
the judgment had been obtained regularly, and it is an inflexible
rule that in,such circumstances, if rescission is sought,
the
defendant must show a defence on the merits. In this respect, the
defendant deposed no more than that he had a counterclaim
in the
amount of M400, in respect of repair to the plaintiff's vehicle,
which he was retaining, in exercise of a repairer's lien,
until paid
the said sum. Whatever about the latter aspect the Magistrate simply
had no power to set aside judgment in the admitted
amount of M600. As
to the amount of M400, the Magistrate was dealing with an averment
made two years previously, and under those
circumstances I would have
thought it incumbent upon the defendant to satisfy the court that
such lien was still being exercised
and that the counterclaim was
still in existence. The Magistrate, however, never considered the
merits of the proposed defence.

All of
the above aspects are matters for consideration on appeal, were an
appeal to lie, and which indeed would ensure the success
of such
appeal. There is another matter however which comes within the ambit
of review.

The
Magistrate relied upon the provisions of section 21 (2) . of the
Subordinate Courts Proclamation, no.58 of 1938 (see now section
21
(2) of the Subordinate Courts order, No.9 of 1988, although those
provisions had not been raised or argued before him. Those
provisions
read

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"(2) The Court may rescind or vary any judgment granted by it
which was void ab origine, or was obtained by fraud or by mistake

common to the parties".

Very
early in his judgment the Magistrate referred by name to the two
Attornies who had initially appeared for the plaintiff and
defendant
respectively. He then observed:

"I may mention here that these two Counsels work in office
opposite the court room behind Fairways and they use one office.
I am
aware this is not in the papers but since we live in the same
Locality here the Court takes judicial notice of this. It is

surprising how they could represent people of different interests in
the same case. I doubt not their intergrity but one of their
clients
had to suffer. It is not clear how and why they worked in such a way
that the other client should get superiority over
the other by way of
default judgment. Normally these two counsels freely appear for each
other's clients in this courts. In the
circumstances the former
plaintiff's Attorney still owed defendant a duty by nature of mutual
co-operation with his Attorney which
duty he did not properly
discharge because he acted in the interest of his client only."

The
Magistrate then quoted the above provisions of section 21 (2) and
proceeded,

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"In my mind under the circumstances I have described this
Default judgment: was obtained by fraud and I would have no
alternative
but to rescind it. To me it was unethical."

While a
Magistrate may take judicial notice of matters notorious in the area
where the court sits ('see e.g. Rex vs Van der Merve
(1) and Rex vs
Adkins (2)), he may not rely on his personal knowledge of matters
which are not notorious, even locally: see e.g.
Rex vs Ngcombe (3)
where on appeal it was held that a Magistrate could not take judicial
notice of the fact that :he foyer of the
premises of a leading local
newspaper was open to the public as a reading room. In the present
case, it cannot by any stretch of
imagination be said that the
working conditions of the two Attornies was notorious.

But of
far more concern in the Magistrate's unwarranted intrusion into the
Attorney and client relationship. About the only assumption
that a
Magistrate can make in the matter, is that :he Attorney appearing
before him, as an officer of the court, is duly instructed
by his
client, no more than that. To make natters worse, on the one hand the
Magistrate says of the two Attornies, "I doubt
not their
integrity": thereafter he describes their conduct (or is it that
of the plaintiff's Attorney?) as "unethical".
Having
already concluded that the judgment "was obtained by fraud ".
Quite obviously there was not the slightest evidence
of fraud, or
unethical conduct for that matter, before :he Magistrate.

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The
issues there traversed by the Magistrate were never raised before
him. It was bad enough that he did not judicially apply his
mind to
the issues before him, in that he took into consideration matters
which were completely irrelevant, to such an extent that
I am bound
to say that he was "on a frolic of his own," it is a matter
of grave concern that in doing so he recklessly
impugned the
character of two officers of the court.

The
Magistrate's attitude persisted throughout his judgment, in that he
placed the blame for the delay in the matter, without any
application
for condonation before him, seemingly at the door of the defendant's
Attorney, saying that the defendants "wanted
an Attorney who
could work". Indeed his attitude in the matter persisted to the
extent that he failed altogether to apply
his mind to the merits of
the proposed defence.

The
question arises as to whether this Court should exercise its power of
review in the matter. I consider that the Magistrate's
excursion into
the role played by the respective Attornies, and the subsequent
finding of fraud, were totally unwarranted,, unsupportable
and
irrelevant. I consider that a gross irregularity was there involved,
which permeated the remainder of the judgment. The plaintiff
was
clearly prejudiced in that he was after a delay of almost three
years, deprived of the fruits of a judgment regularly obtained.
The
Court is always slow to intervene in Subordinate Court proceedings
(see e.g. the case of (Mohlakoana Mabea & another vs
Magistrate
of the 1st

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for
Butha-Buthe & another (4)) but the irregularity involved is such
that I consider that the Court should intervene mero motu
in the
matter. Accordingly the judgment of the Court below, rescinding the
default judgment, is set aside. The said default judgment
is
confirmed. I grant costs in this Court and the Court below to the
plaintiff.

Dated
this 20th Day of January, 1995.

(B.P.
CULLINAN)

CHIFE
JUSTICE