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CIV/A/20/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

S. M.
KALEEM APPELLANT

and

'MASESHOPHE
HLAJOANE RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 8th November, 1995

It was
against the decision of the learned magistrate of Maseru, of the 1st
September 1992, that the present appellant - who was
Defendant, in
the Court a quo appealed to this Court. The decision was in an
application for stay of execution and setting aside
a default
judgment. Summons had been served on the Defendant on the 8th October
1991 and the application was filed on the 19th
November 1991.

It was
common cause that the Appellant (who I will call the Defendant) did
not file any plea nor enter into

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appearance
to defend the action. He had before the 12th November 1991 and after
service of the summons on him, contacted the Plaintiff's
(now
Respondent) Attorney for the purpose that "although I denied
liability, I was prepared to compromise and settle for an
amount we
would agree upon." This is admitted with the terse reply that it
was only on the' 18th October 1991, that is two
days after default
judgment was granted that the approach was made. This time, as
Plaintiff contended, the Defendant was informed
about the fact that
the judgment has already been entered. The Plaintiff made a further
point in this regard that it was significant
that the Defendant
deliberately and conveniently avoided disclosing the date on which he
went to Plaintiff's Attorneys' offices.
This, in her submission
corroborates the story that only after the judgment was her Attorney
approached. The reply by the Defendant
(in not mentioning any date)
is not in my view very helpful. He says at paragraph 4.1 of his
replying affidavit:

"4.1 I deny that I only approached the Plaintiff's Attorney's on
the 18th October 1991 and put deponent to proof thereof.
I reiterate
my averments in

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paragraph 3 of the founding affidavit."

When in
paragraph 3 he had said:

"3.

On receipt of the aforesaid summons I immediately approached the
Plaintiff's Attorneys with the intention of sorting out the dispute

amicably in order to prevent unnecessary litigation which would cost
both parties time and money, I was referred to Mr. Phafane
of the
firm of Attorneys G.G. Nthethe the Plaintiff's Attorneys."

Quite
against the background of the summons commencing action, is the fact
that on the 5th June 1991 a letter of demand in the same
terms as the
claim was made. A reply to the letter of demand was made on the 14th
June 1991. It stated that :

"At the outset our client denies any negligence or recklessness
whatsoever on his part. In the circumstances our client denies
any
liability whatsoever towards your client and we must advise that any
action which your client may be advised

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to institute will be strenuously defended."

The point
was made that as after the issue of summons the Defendant did not
intend to defend the claim but rather opted for settling
the matter
out of Court. Otherwise he should have defended with the fervour
shown in his reply to the letter of demand. And that
could only by
way of a timeous entry of intention to defend and the filing of a
plea.

We came
to observe from the papers filed in the said notice of application
that the Defendant deposed that, while awaiting Mr. Phafane's

response, it was on or about the 12th November 1991 (that is after
thirty three days) when to his "surprise" the messenger
of
Court informed Defendant that he (the messenger) was armed with a
Writ of Execution with which he wanted to attach Defendant's
car. As
a result Defendant approached his Attorneys who confirmed that on 13
November 1991 a default judgment had in fact been
entered. It was the
time that the Defendant (as he alleges) got such information. The
Defendant averred that in the circumstances
he was not in wilful
default of entering appearance to defend. He said he trusted Mr.
Phafane and was happy that if Plaintiff

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declined
the offer Mr. Phafane would inform Defendant (as promised) and in
that event he would immediately enter appearance to defend
in as much
as he had a valid and bona fide defence. It is to this circumstances
that the Plaintiff replied that the defendant was
in wilful default.

In
suggesting that he (Defendant) placed his confidence in the
Plaintiff's lawyer, not in his own attorneys, not only did Defendant

ignore his own lawyer (who answered the letter of demand), but he had
decided not to defend the matter. To go to Plaintiff's Attorney
and
seek to impute blame on him is to shift responsibility unfairly. This
is compounded, much considerably, by the denial of the
Plaintiff's
Counsel. The denial amounts to averring most categorically that it
was on the 18th October 1991 when he first had contact
with the
Defendant and when he informed him that judgment had already been
taken. The Counsel went on to depose that (accepting
that he agreed
to speak to his client) later in the day he telephoned Defendant to
advise that the offer to pay has been rejected.
it was then that
Defendant undertook to pay the judgment debt at the end of the month
of October. This the Defendant did not do.
The Plaintiff's Attorneys
had in the

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meantime
not issued the warrant of execution. The Plaintiff asked the Court to
take it as improbable that the Defendant waited for
Plaintiff's
Attorney's response from the 8th October to the 12th november 1991 or
at all. Defendant was served with a warrant of
execution on that
date. I was being urged that the probability was more that the
Defendant did not wish to defend, when regard
is heard to that he is
not an ignorant person and had consulted his lawyers before about the
matter.

It has been said that :

"It is incumbent for an applicant seeking rescission of a
judgment granted in default of appearance or in default of failing
to
show good cause and prove that he at no time renounced his defence
and that he had a serious intention of proceeding with the
case (Van
Asweagen vs Mcdonald Foreman & Co. Ltd 1963 (3) SA 197)" per
Cotran CJ, in Makalo Khiba vs L.E.C 1980 LLR 329
at 400. I was
persuaded that the Defendant was in wilful default as the Court a quo
correctly found. There is no doubt that the
Defendant ignored the
process of Court,

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In the
circumstances above stated I would be reluctant to accept that there
was sufficient cause entitling this Court to use its
discretion in
favour of the Defendant. This was not a case where the Defendant
having intended to defend he merely delayed to file
a pleading.
Courts have frequently held that delay in filing a pleading, due to
the fact that negotiations for a settlement were
in progress at the
time, the particular pleading should have been filed is sufficient
cause to warrant the granting of the indulgence.
(See Africa Plant
Services vs Rainbow Construction (Pty) Ltd CIV/T/54/93, 14/09/94,
unreported). This was not such a case. It is
denied that, if ever
there were any overtures about negotiating anything, such was before
obtaining of the judgment by default.
If it had been before obtaining
a default judgment I would have said that the Plaintiff seemed to
have condoned failure by the
Defendant to file papers in time. The
Defendant would then not be blamed for laxity or abuse of Court
process.

I agree
with the learned magistrate that the correct position in law is that
"Before a person can be said to be in wilful default,
the
following elements must be shown :

1. Knowledge
   that the action is being

   
   

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brought against him.

2. A
   deliberate refraining from entering appearance, though free to do
   so.

   
   

3. A
   certain mental attitude towards the consequences of the default."
   (citing Jones & Buckle Vol. 11 7th edition at page
   367).

   
   

It is on
these tests that the magistrate therefore correctly found that the
Defendant was in default of appearance.

It was
submitted by the Plaintiff's Counsel that the two requirements of
absence of wilful default and the existence of a bona fide
defences
must be met contemporaneously for a Court to grant rescission of.
judgment. That furthermore it was not sufficient if
any one of those
two requirements is met (see Jerome Ramoriting & Another vs
Lesotho National Development Bank CIV/APN/136/87
(Unreported) and
Mathakeng Khosi vs Mary Mamothibi Khosi CIV/APN/258/85 &
CIV/APN/233/85 (Unreported) and authorities cited
therein and Chetty
vs

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Law
Society Transvaal 1985(2) SA 756 at 765 B-C),

When
referring to the second requirement in an application for rescission
the Plaintiff has submitted that the Defendant has failed
to show
that or merits he has a bona fide defence which prima facie carries
some prospects of success. He has not placed before
Court sufficient
evidence as to his defence. Furthermore he must place before Court
sufficient evidence from which it can be inferred
that he has a bona
fide defence to the action. A bare assertion of good faith is not
enough (Negcezulla vs Stead 1912 EDL 110)
per Cotran CJ in Khiba vs
L.E.C. 1980 LLR 392 at page 400. The paragraph 9 of Defendant's
affidavit seems to hold the key to what
the Defendant spoke . of as
his defence. The paragraph reads:

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It will be noted from paragraph 6 of Plaintiff's particulars of claim
that Plaintiff does not say how I was negligent in performing
the
said operation and when she became aware of my negligence, I verily
aver that Plaintiff is the one who was negligent in that
she did not
take necessary precautions or follow the prescription

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which she was well aware of."

Perhaps
the magistrate could have wrongly assessed the quantum of damages but
I do not see how he went about wrongly in his proceedings
under Rule
4(4) of the Order of the Subordinate Court Rules 1988 which reads:

" The Clerk of Court shall refer to the Court any request made
under Rule 2 or 3 of this Order for entry of judgment on a
claim of
damages and the Plaintiff shall furnish the Court evidence either
oral or by affidavit of the nature and the extent of
damages suffered
by him. The Court shall therefor assess the amount recoverable by
Plaintiff as always and shall enter judgment
therefor."

The
Plaintiff elected to put in her affidavit on the basis of which he
proceeded and got judgment. It is this which the Defendant
finds
fault with.

The
failure by the Defendant to inform as to what these necessary
precautions or prescriptions which Plaintiff was well aware of,

carried with it the risk that

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the
magistrate would not understand what his defence was. It is not even
clearer now. Perhaps Defendant would have been able (if
allowed to
plead) to show that the Plaintiff did not prove how Defendant was
negligent and when she became aware of the negligence.
But this seems
to me not to be the proper approach when regard is had to the onus
that the Defendant bears of proving that he had
a bona fide defence
not for the Plaintiff to prove that the Defendant had no bona fide
defence as a matter of onus.

The risk
or the danger of a judgment by default was obvious to the Defendant.
It means that not only was he denied an opportunity
to defend in
effect but the issues would not be fully ventilated. But it was of
his own making. While the Court becomes occupied
in bringing
discipline and speeding up litigation it cannot be denied that the
Defendant has not been heard. The Court proceeds
on the basis that he
has denied himself the opportunity to be heard. It is in such a case
that the Defendant cannot be heard to
say that the principle of audi
alteram partem has been undermined. (See also generally GEORGE NTSEKE
MOLAPO vs MAKHUTUMANE MPHUTHI
& 2 ORS CIV/APN/188/94 W.C.M.
MAQUTU J, 17th March, 1995 - unreported)

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I was
satisfied that the magistrate correctly found that the Defendant has
been unable to present a reasonable and acceptable explanation
for
his default and that he has no bona fide defence which prima facie
carries some prospects of success.

The
appeal was accordingly dismissed with costs.

T.
MONAPATHI

JUDGE

8th
November, 1996

For the
Appellant : Mr. Sooknanan

For the
Respondent : Mr. Phafane