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CIV/APN/339/94
(CIV\T\154\94)

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

THABO
MICHAEL MOTSEKI Applicant

And

LESOTHO
AGRICULTURAL DEVELOPMENT BANK Respondent

JUDGMENT

Delivered
by the Honourable Mr, Justice T. Monapathi on the 7th day of March
1995

This is
an application for rescision of judgment obtained by default by the
Respondent/Plaintiff on the 21st November 1994. The

Applicant/Defendant also applied for rule nisi to have the recision
of the judgment or writ suspended pending the hearing of the

application and other incidental relief. The matter concerned a case
under number CIV/T/154/94 of this Court. Mr. Matabane conceded
he was
in default when that he came in late into Court after judgment was
entered against his client. I suppose that had he been
in Court the
Court could have taken a different turn. For the meaning of the term
default see Katsiris

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vs de
Macedo 1966(1) SA 1913 at 618B as approved in the judgment of Maqutu
J in Mamanini Pinkie Molatseli vs Matikoe High School,
28th October,
1994 (unreported).

I did not
find this application any unusual in any sense except that it is one
of the many examples where the Rule 30(1) of the
Rules of Court has
been consistently ignored or where a party has not taken advantage of
the rule where circumstances were proper.
The rule reads:

"Where a party to a case takes an irregular or improper
proceeding or improper step any other party to such cause may within

fourteen days of the taking of such step or proceeding apply to Court
to have it set aside: Provided that no party who has taken
any
further step in the case with knowledge of the irregularity or
improperly shall be entitled to make such application."

I have in
the past once referred to the application of this rule in the matter
of ICI Les. (Pty) Ltd vs K. Goosen CIV/APN/205/94,
27th July 1994
(unreported), in the somewhat more complicated setting of that
matter. The Respondent conceded that if notice to
file plea served on
the Applicant served on the 15th July, 1994 it was irregular in that
it had been made when the number of days
allowed by Rule 22(1) had
not expired. This was so when reference is made to the rule and the
interpretation given to computation
days as one will find in the
interpretation of section of the Rules of the High Court Legal Notice
No.9 of 1980. Mr. Matabane submitted
that support could also be found
in the

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Interpretation
Act 1977. It will be calculated that it could not have been more than
15 days after the notice of intention to defend
had been filed. That
was not after 21 days. Miss Mafoso for the Respondent accepted that
to be the position. It was then upon the
present Applicant to have
taken advantage of the provision of Rule 30(l), but he did not. The
notice to file plea had been irregular.

The
Applicant then proceeded on the 21st July, 1994 to file a request for
further particulars to the summons and declaration, that
having been
a combined summon. Again the Plaintiff ignored the Rule 30(1) . The
Plaintiff did not apply to set aside the request
for further
particulars. It appears that there was correspondence criss-crossing
between the parties in which there was basic misunderstanding
as to
what to do about the notice to file plea and the request for further
particulars. Respondent contends that the Applicant's
Attorneys asked
for time in which to call for and consult client who was in the
Bothuthatswana in South Africa where he is employed
since about the
1st April 1992. That is why after a considerable delay (in the
Respondent's perception) a notice of bar was filed
on the 28th
October 1994. This was in terms of Rule 26(3). What did the Applicant
do? He ignored the notice when he should have
applied to Court in
terms of Rule 30(1) to have the notice of bar set aside. This he
could have done bearing in mind that he could
not have fallen

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out on
the proviso to the rule. This would be proper since his attitude
(rightly or wrongly) has been that he was still awaiting
a reply to
his request for further particulars. What is also important is that
the Applicant may have felt that since the Respondent
had not done
anything or about against the request for further particulars, the
request was still on the right footing.

The
matter was on the 9th November 1994 to be set down for the 21st
November 1994 for default judgment. After the filing of the
notice of
set down the Applicant served on the Respondent a notice of
application to compel Respondent to furnish particular particular

requested on the 21st July, 1994. This document was not in the
Court's file on the day of the hearing of the application for default

judgment. Neither was the notice of intention to oppose the notice to
compel in the Court file. Both Counsels took blame for the
absence of
its respective process in the Court file. Again the Respondent
treated the Notice to compel as if it was a regular process.
This is
so, because, in my view, filing a notice of intention to oppose does
not evince an attitude or treatment one would expect
when the process
was being viewed as an irregular one. If the notice was regarded as
irregular Rule 30(1) should have been invoked.
The notice of
intention to compel was also set down for the 21st November 1994. As
to how the Applicant would go about dealing
with the notice one does
not really know. But the probability

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is that
it would have been brought to the attention of the Court when the
Respondent stood up and applied for judgment.

I have
made a lot of comment about how the parties should have conducted
themselves in connection with the application of Rule 30(1).
I would
there for make a finding that the Respondent has not proved its case
that the Applicant was willful nor mala fide. There
is no doubt that
there has been a transgression of the rules of Court which I cannot
place at the door of the Applicant alone.
But that to me is not a
demonstration of wilfulness as contemplated in the Rules or as
lawyers would understand that to mean.

Coming to
the question of a defence on the part of the Applicant, I am inclined
to believe that there is one in favour of this Applicant.
Indeed one
need not bring actual proof or proof to the level of evidence but the
Court must be made to perceive or observe the
existence of a defence
of some kind. On this occasion it is that the Applicant alleges to
have paid or in fact overpaid Respondent,
the Applicant having paid
on a scale of an ordinary customer when he should have paid as an
employee of the Respondent. This may
at trial turn out to be untrue
but that is not the test. He still regarded himself as an employee of
the Respondent, that also
being the subject of a dispute still
pending in this Court in some other case or cases. I have been

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advised
that I need not look into the request for further particulars in
other to see whether there is something in the nature of
a defence or
a basis for a counter claim. This is correct. I would find that the
Applicant does have a bona fide defence of some
kind. Whether it will
succeed or not is another matter.

I come to
this question of payment of security for costs of the default
judgment and of the application for rescission of such judgment
as
envisaged under Rule 27(6)(b). In so doing I also note that in order
for this application to be heard Applicant undertook to
file an
undertaking for the said security for costs which the parties agreed
should be estimated at M2/500.00. This amount being
available to
realize taxed costs of this Application on the ordinary scale.

The
granting of an order rescission and costs is in the discretion of the
Court the party apply therefor asking for an indulgence.
I do not
intend to ever go about apportioning blame for the respective conduct
of each party more than I have already done and
more than to do what
is required by the justice of the matter.

I do not
agree that there should be costs awarded de bonds propriis against
Mr. Matabane. I do not think that there is

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anything
in his conduct that can be called serious or reprehensible therefore
for calling for an award of costs of an exemplary
nature. I do not
agree with the Respondent in that regard.

I make
the following further orders: Respondent shall plead, file objection
or except and or counter-claim within seven days. In
any event he
shall plead over. I end up by thanking Counsels for the brief and
smooth way they have argued this application.

T.
MONAPATHI

JUDGE

For the
Applicant : Mr. Matabane

For the
Respondent : Miss Mafoso