CIV/APN/188/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

GEORGE
NTSEKE MOLAPO APPLICANT

AND

MAKHDTUMANE
MPHUTHING 1ST RESPONDENT

HIS
WORSHIP MR. NTHABI 2ND RESPONDENT

A.
MAHLALUENE - MESSENGER OF COURT 3RD RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu on the 17th day of March,
1995.

This
matter was argued on the 6th March, 1995 in the absence of the First
Respondent.

On the
2nd October, 1994 the First Respondent's attorneys had been served
with the Notice of Set-Down informing them that the matter
would be
heard on the 6th March, 1995. Before proceeded with the hearing I
directed Mr. Phoofolo the attorney

2

for
Applicant to find out why Mr. Hlaoli attorney for First Respondent
was not before Court.

Mr.
Phoofolo informed the Court that he saw Mr. Van Tonder (an advocate)
who according to Mr. Phoofolo works closely with Mr. Hlaoli.
Mr. Van
Tonder informed Mr. Phoofolo that Mr. Hlaoli would not be available,
Mr. Phoofolo insisted on proceeding with the matter
as it was on the
weekly roll which had been circulated to all legal practitioners a
few days earlier. I then proceeded with the
matter.

This is
an application for review against the judgment of the Magistrate for
the Leribe district. In that matter the magistrate
had dismissed an
application for rescission of judgment that was made two months out
of time when it should have been made within
30 days of the date on
which Applicant knew of the judgment. See Order No.XXVIII Rule I(1)
of the Subordinate Court Rules.

Examining
the record it is not clear when default judgment was entered. The
magistrate has written what appears to be 11/2/93 but
the
rubber-stamp shows December 1993 and the date of 1st December is
entered by hand.

3

According
to paragraph 5.2 of Applicant's founding affidavit, he first knew of
the judgment on the 6th December, 1993. Summons
had been served in
his absence but he found them at his home on 3rd December, 1993.

It seems
to me that an application for rescission of judgment should have been
made on or before the 5th January, 1994. This was
not done by
Applicant's attorneys although Applicant had given them the summons
to take appropriate action. They merely informed
him default judgment
was taken on 6th December, 1994.

There
does seem to be evidence that Applicant did not receive proper advice
or his attorney did not take timeous action to have
the judgment
rescinded. Applicant seems to have only contented himself with paying
the M600.00 which he admitted but failed to
apply for rescission of
judgment in respect of the M2000.00 damages which he disputes. Even
so he only paid the M600.00 after a
warrant of apprehension had been
issued. The warrant was issued on the 29th December, 1993 while
M600.00 was paid on the 6th January,
1994.

Applicant's
main concern was stated at the end of paragraph

4

6 of his
affidavit before the Magistrate in the following words:-

"On the 11-3-94 a messenger came armed with a writ in the amount
of M2000.00 I was shocked since we have settled."

Applicant
does not state the reasons for default after the 6th December, 1993
as he is expected to do. Rule 1.2 or Order XXVIII
of the Subordinate
Court Rules provides that Applicant "shall set forth shortly the
reasons why Applicant did not appear.
— Rule 2(1) of Order
XXVIII clarifies the position as follows:

"The Court may on hearing any such application, unless it is
proved the applicant was in wilful default, and if good cause
is
shown, rescind..."

It seems
to me that Applicant's affidavit does state why he did not enter
appearance. That is because he was not in the country.
What is clear
is that Applicant was ignorant of the law or that his attorneys
failed him. He merely paid the M600-00 that he knew
he owed First
Respondent and left the M2000-00 damages. That omission now haunts
him.

I think
the words of Lord Atkin in the House of Lords

5

decision
in which the Court was dealing with a rescission of judgment are
apposite, where he said:

"For my part, I am not prepared to accept the view that there is
in law any presumption that any one, even a judge, knows
all the
rules and orders of the Supreme Court. The fact is that there is not,
and never has been a presumption that every one knows
the law. There
is a rule that ignorance of the law does not excuse, a maxim of a
very different application." -Evans v Bartlam
1937 2 All ER 646
at 649GH.

In other
words the maxim that ignorance of the law does not excuse is a
purposeful precept applied in the public interest to buttress
rather
than undermine the rule of law. If people can plead ignorance of the
law in all cases there can be chaos. When it comes
to default
judgment, the court wants to know the truth of what caused the
default. It has the discretion to rescind judgment after
evaluating
the circumstance that caused the failure to abide by the rules.

What
really is Applicant's problem is that his application is out of time.
If his application was not time barred I would have with
respect
differed from the magistrate.

It is
allegations made in the applicant's affidavit in

6

support
of an applicant's application for review before this Court that give
me difficulty. They seem not to be properly considered.

Applicant
legitimate complaint was that he had not received summons as he was
entitled to expect. Yet the behaviour of the Applicant
towards this
default judgment once he knew it existed cannot gain any sympathy of
the courts as the judgment would have been set
aside as a matter of
course if Applicant had applied. Nevertheless courts should never
lose sight of the fact that as Lord Atkin
stated crisply when he
explained the rational behind rescission of judgments:-

"The principle is that unless and until the court has pronounced
a judgment on the merits or by consent, it is to have the
power to
revoke the expression of its coercive power where that has only been
obtained by a failure to follow any rules of procedure."
vide
Evans v Bartlam [1937] All ER 646 at 650D.

There is,
unfortunately, a tendency among court practitioners to forget that
default judgments are not intended to be a denial of
the audi alteram
partem precept. The procedure is simply designed to speed up the
machinery of justice. To achieve that object
courts apply their
awesome coercive power of granting

7

judgment
against those who delay or default in responding to summons or court
procedures.

Basically
a default judgment revolves around neglect to take the required step
timeously. To an ordinary person who finds a default
judgment taken
when he has not received summons, the procedure seems inexcusably
unfair He fails to realise that default judgment
is set aside as
matter of cause provided there is no inexcusable neglect. Default
judgments are based on,

"a desire to avoid delays and protracted litigation and the
court will always grant leave to purge a default where the justice
of
the case requires it, more especially if it is improbable that the
action will be delayed by the granting of the application,
or if the
opposite party will not be prejudiced thereby." See Beck's
Theory and Principles of Pleading in Civil Litigation
4th Edition by
Isaac paragraph 80.

Where
there has been no personal service, to members of the public, rules
of court on service of summons yield strange results.
It therefore is
possible for a simple law abiding man in Lesotho not to believe there
can be rules of laws that can allow a judgment
to be taken without
his having stated his case. Default judgments in such circumstances
collide head-on with the audi Alteram partem
rule. This is what a
reasonable person might

8

not
expect. Courts have therefore been given a substantial discretion to
rescind default judgments. Although the trial court has
a discretion
to rescind a default judgment on "good cause" being shown,
such a court should never forget that default
judgments are intended
to avoid delays and to put pressure on litigants to speed up the
finalisation of cases. They are not intended
to prevent defaulting
parties from putting their cases before the courts.

Courts
have to be on guard that laxity and abuse of the court process does
not happen. For this reason courts may refuse to grant
rescission of
default judgments where there is wilful default. Landsdown JP in R v
Tosela 1942 EDL 175 defined "wilful* in
the following words:

"In general, apart from any particular context, an act is wilful
which is deliberate and intentional and not occasioned by
ignorance,
inadvertence, accident, physical disability or like causes: not only
is knowledge present but volition is brought into
activity."

In the
past ignorance of a simple person was often recognised as a
reasonable ground for rescission of judgment. Indeed Lord Atkin
in
Evans v Bartlam [1937] 2 All ER 646 at 649 GH accepts

9

that even
a judge is not expected to know all the rules. Of late the attitude
of courts have somewhat hardened Brink J in Grant
v Plummers (Pty)
Ltd 1949(2) SA 470 at 476 stated:

"If it appears, that his (i.e. applicant's) default was wilful
or that it was due to gross negligence the court will not come
to his
assistance."

The view
I take of the matter is that while I agree with what has been said in
Grant v Plummer it seems to me:

"It would be impossible to frame an exhaustive definition of
what would constitute sufficient cause to justify the grant of
an
indulgence. Any attempt to do so would merely hamper the exercise of
a discretion which the Rules have purposely made extensive
and which
it is highly desirable not to abridge."

Courts
should keep discipline and speed up litigation and finalisation of
cases. They should stamp their disapproval where there
is a
deliberate disregard of the court rules. In my view courts should
never interpret the rules that govern the granting and rescission
of
default judgments in such a way that the audi alteram partem
principle is undermined. A delay of necessity prejudices Plaintiff

but a lot of the prejudice that a judgment creditor suffers can be
met by an appropriate order as to costs.

10

In thetty
v Law Society Transvaal 1985(2) SA 756 at 765 BC Miller JA said there
are two essential elements of "sufficient cause"
for
rescission and these are:

"(i) that the party seeking relief must present a reasonable and
acceptable explanation for his default; and

(ii) that on the merits such party has a bona fide defence which,
prima facie carries some prospect of success.

Miller JA
had laid down these two requirements for rescission after saying "the
term 'sufficient cause' (or 'good cause') defies
precise or
comprehensive definition, for many and various factors require to be
considered."

It will
therefore be observed that rescission of judgment takes place after
the court has balanced many factors. Miller JA in thetty
v Law
Society Transvaal at page 765D concluded:

"It is not sufficient if one of these two requirements is met;
for obvious reasons a party showing no prospects of success
on the
merits will fail in an application for rescission of a default
judgment against him, no matter how reasonable and convincing
the
explanation for his default. And, an ordered judicial process would
be negated if, on the other hand, a party who could offer
no
explanation other than his disdain of the Rules was nevertheless

11

permitted to have a judgment against him rescinded on the ground that
he had reasonable prospects on the merits."

In this
case Applicant is an ordinary man (probably what one might suspect as
being not well educated). In thetty v Law Society
Transvaal the
appellant with whom Miller JA was dealing with was a practising
attorney. Appellant had gone overseas and had been
given substantial
latitude. A rule nisi had been granted against him which was only
confirmed four months later after a great deal
of correspondence
between the attorneys of both parties. In a case such as that one the
court could legitimately speak of applicant
as having "no
explanation of his default other than his disdain of the Rules".

What is
clear is that Applicant knew of the judgment three months before and
that Applicant's application was (in terms of the rules)
brought two
months too late. The door of the Magistrate's Court was closed to
Applicant unless his case fell under Section 21 of
the Subordinate
Courts Order of 1988. This applies to judgment obtained by fraud,
mistake common to both parties and was void ab
origine. In that event
it had to be brought within one year of the ground of invalidity
coming to the notice of Applicant. See
Order XXVIII Rule 3(2) of the
Subordinate Court

12

Rules.

It seems
wrong to say default judgment was granted on the 29th November, 1993
as Applicant alleges. Default judgment seems to have
been granted on
the 1st December, 1993 or thereabout if we go by the rubber stamp on
the Magistrate's file. Indeed the Warrant
of Execution that was
issued on the 6th December, 1993 states that judgment was entered on
the 1st December, 1993. Only the request
for default judgment was
filed with the court on the 29th November, 1993. I do not see how
this point could help applicant in any
way. He alleges judgment was
given before the 7 days that a defendant was given having regard to
the fact that summons was served
on the 20th November, 1993, It would
seem to me that judgment was taken eleven days after service of
summons if we accept that
judgment was entered on 1st December, 1993.
I am therefore satisfied that there was no irregularity as Applicant
alleged before
the Magistrate.

Belatedly
applicant raises the illegality of the contract for the sale of land.
It is not by any means clear whether sale of "rights
over a
certain residential site" means the same thing as sale of land.
Leases are sometimes sold or assigned for a consideration.
Yet these
are rights over land.

13

There is
problem of whether the damages of M2000.00 are based on evidence. the
basis of the judgment is the following evidence:

"for all this time I had rented at Mrs. Moholisa's where I paid
M80.00 per month as rental, it was in 1990 when I paid in
that
money., I had applied for a residential site I wanted to improve and
build my house there. I estimate I have been paying rental
to Mrs.
Moholisa of ±M1900.00. I also used public transport and my car
to go and ask for my money back, I intended to built
my house
immediately. 1 was forced to go back to my parental home. And as a
result of defendant's action I have incurred damages
of M2000.00 or
so."

There is
no evidence that Plaintiff had the money to build a house. All that
he has shown is that he in fact had no money. Because
he had no money
he had to go back to his parental home. If he could not build a house
he had to live on rented accommodation or
at his parental home.
Plaintiff has put no evidence on record that entitled him to
judgment.

The fact
that a default judgment is being asked for does not mean rules of
evidence and procedure must not be followed. In Cohen
Ltd v
Koekermoer 1949(2) SA 807 the court refused to grant a default
judgment where there was no allegation that a condition that
made the
debt due and payable had been broken. In my view

14

the
magistrate was obliged to scrutinise the evidence in order to
determine whether the cause of action and the quantum of damages
had
been proved. In Ber v Brand 1960(1) SA 584 at page 588 A Herbstein J
dealing with a case involving damages said:

"In the instant case the contract itself afforded the
evidence... Where this is not clear, the plaintiff may not be able to

obtain a default judgment but may have to file a declaration and lead
evidence."

By
evidence I understand evidence that proves the damages. I have
already held the evidence that Plaintiff gave does not prove the

damages claimed. In Knight v Harris 1962(2) SA 317 at 319 Beadle CJ
dealing with rules of court that are different from ours in
a default
judgment application said:

"There is, moreover, an additional reason why in this case the
court should not dispense with the hearing of evidence, that
is,
because so far as the court is aware, the proceedings have not been
brought to the personal notice of the defendant. It is
not easy to
infer in this case, therefore, that the defendant had no objection to
the claim as it would be in a case where personal
service had been
effected and no appearance and plea filed."

Applicant
was not personally served with the summons, therefore these words of
Beadle CJ apply to him. The rules of the

15

Subordinate
Court are clear on the question of evidence in matters of damages.
Taking a default judgment does not entitle a plaintiff
to judgment
even where he has not led evidence to prove his claim. In this case
Plaintiff led evidence, but unfortunately he did
not lead the
evidence that proved his claim of damages. This fact completely
escaped the attention of the trial Court,

Giving
judgment without the requisite evidence amounts to giving judgment
illegally. It is the same as not admitting admissible
evidence,
admitting inadmissible or incompetent evidence. Giving judgment
without evidence goes to the method rather than the result.

Naturally
the method is bound to affect the result. In Visser v Estate Collins
1952(2) SA 546 where it was found a magistrate rescinding
a default
judgment had acted on no evidence on which he could rescind the
judgment, the matter was corrected on review. The Magistrate's

judgment was set aside. In this case that we are dealing with is the
opposite because the Magistrate granted a default judgment.

Schreiner
JA in Goldfield Investment Ltd v Another v City

16

Council
of Johannesburg & Another 1938 TPD 551 where he said,

"It is not merely high handed or arbitrary conduct which is
described as gross irregularity; behaviour which is perfectly

well-intentioned and bona fide though mistaken may come under this
description. The crucial question is whether it prevented fair
trial
of issues."

In this
case the Magistrate bona fide granted a default judgment on damages,
believing she was doing so on evidence - when in fact
there was no
evidence.

In the
case of Mpevu 6 Others v Nqasala 26 SC 531 at page 534 De Villiers CJ
said:-

"To give judgment against any man without any evidence whatever
against him seems to be a greater irregularity than to reject
legal
evidence or admit illegal evidence, for it ignores the very object
for which all the rules of evidence exist."

This is
precisely the reason in terms of Rule 4(4) of Order X of the
Subordinate Court Rules provides that:-

"the Clerk of the Court shall refer to the court any request
made under Rule 2 or Rule 3 of this Order for entry of judgment
on a
claim of damages and the plaintiff shall furnish the court evidence
either oral

17

or by affidavit of the nature and extent of the damages suffered by
him. The Court shall thereupon assess the amount recoverable
by
plaintiff as damages and shall enter judgment therefor."

I have
already said the court mistakenly believed Plaintiff had provided it
with evidence and by it proved the extent of the damages
suffered by
him when in fact Plaintiff had failed to do so. To put the
Magistrate's mistake in Schreiner J's remarks the Magistrate's
Court
in granting that default judgment was,

"misconceiving the whole nature of the enquiry, or of its duties
in connection therewith,..."

I note
Respondent had taken the point in limine that the Magistrate when
being taken on review was being sued. That is incorrect
he is merely
cited in order that she can be compelled to send the record to this
Court for review.

In the
light of the aforegoing I set-aside the default judgment in respect
of damages of M2000.00 entered against Applicant.

On the
question of costs I feel the proper judgment should

18

be that
each party should pay its own costs and it is so ordered.

W.C.M.
MAQUTO

JUDGE

For
Applicant : Mr. H. Phoofolo

For 1st
Respondent: Mr. T. Hlaoli