C of A (CIV) NO16/2005

IN
THE COURT OF APPEAL OF LESOTHO

In
the matter between:

NAPO
THAMAE 1^st Appellant

LINEO
MALITŠITSO THAMAE 2^nd Appellant

and

AGNES
KOTELO 1^st Respondent

MESSENGER
OF COURT 2^nd Respondent

Coram:

Ramodibedi JA

Grosskopf
JA

Melunsky JA

SUMMARY

Application for stay
of execution and rescission of judgement – writ of execution
differing substantially from judgment of court
– writ should
correspondent exactly with court’s order – matter referred to
Chief Justice in his capacity as chairman of Judicial
Service
Commission. Numerous postponements, some without apparent reason,
and counsels’ unexplained failure to appear resulting
in lapse of
over three years after matter ripe for hearing – this brings the
entire judicial process into disrepute and is to
be deplored.
Chronology of events
leading
up to the hearing for default judgment uncertain due to
discrepancies between first respondent’s
averments, the Court record and judge a
quo’s judgment – court records
should accurately record each appearance and
the order made under name of presiding judge. In applications for
rescission, court should consider
all factors and make assessment on basis of the explanation, bona
fides of the applicant and prospects
of success – factors cannot be considered piecemeal or in isolation
– good defence may compensate
for poor explanation and vice versa –
court a quo
considering explanation only and failing to have regard to other
factors, including prospects of success. Appellants’ denial of
liability prima facie
establishes a bona fide
and valid defence – moreover award of damages by court a
quo grossly excessive and out of all
proportion to a reasonable award – appellant’s explanation of
default reasonable. Litigants
not inevitably responsible for
attorney’s neglect. Appeal upheld with costs.

JUDGMENT

12
and 20 October 2005

MELUNSKY
JA :

[1] In this appeal the first
respondent will be referred to as the plaintiff and the first and
second appellants as the first and
second defendants respectively.
The second respondent is the messenger of the court. He has not
taken any part in these proceedings.

[2] As long ago as 10 September 2001,
Hlajoane J in the High Court granted judgment by default against the
defendants

“In an amount of M250 000 plus M4 500 for coffin
since both are husband and wife the damages for defamation [M250 000]
will be paid
jointly and severally with costs.”

[3] In purported compliance with the judgment, a writ of execution,
under the hand of the Registrar of the High Court was issued
on 13
November 2001. Inexplicably it directed the sheriff of the High
Court or his deputy to cause an amount of M504500 together
with
interest thereon at the rate of 18% per annum from 16 January 2001 to
be realised from the public auction of the defendants’
goods. The
aforesaid amount and interest, so it is recited in the writ, was
recovered by the plaintiff in a judgment dated 30 August
2001. Apart
from the fact that the judgment was granted on 10 September and not
30 August, we have to express our grave concern
that the amount
reflected in the writ was double the amount of the judgment.
Moreover the writ included an interest claim that is
not contained in
the judgement. It is a matter of the utmost importance for the writ
to correspond exactly with the court’s order.
The significant
differences between the judgment and the terms of the writ lead us to
request the Chief Justice, in his capacity
as chairman of the
Judicial Service Commission, to undertake such investigation and
action as he may deem appropriate with a view
to preventing such
regrettable occurrences from happening again.

[4] On 22 November 2001 the
defendants applied for and were granted a rule nisi by
Monapathi J which called on the plaintiff and the messenger of the
court to show cause on 3 December 2001 why;

“(a) The execution of the final order in CIV/T/36/01
shall not be stayed pending finalisation of this matter;

2. Final
   order in CIV/T36/01 shall not be rescinded;

   
   

2. Applicant
   shall not be granted such further or alternative relief;

   
   

(d) Costs in the event that the application is opposed.”

Opposing and replying affidavits were filed and the matter was ready
for hearing by Hlajoane J on 2 May 2005. On 20 May the learned
judge
dismissed the application for rescission with costs. No mention was
made in the affidavits or in the judgment of the extraordinary
contents of the writ of execution, nor did the court a quo deal
with the rule nisi issued by Monapathi J. The defendants
appeal to this court against the dismissal of the application for
rescission.

[5] What is of further concern to us
in the fact that a relatively uncomplicated application, consisting
of only 30 pages, was argued
in court more than three years after the
matter became ripe for hearing. The inordinate delay was due in part
to the fact that judges
of the High Court granted numerous
postponements, in some cases, according to the record, without any
reasons being advanced therefor.
Another reason was the failure of
counsel to appear before the Court on 18 February 2003 when the
matter was struck off the roll.
The next appearance, according to
the record, was on 25 October 2004 when the matter was again
postponed, apparently without the
granting of an order for its
re-instatement. This Court has frequently deplored delays in
bringing litigation to finality. The
proper administration of
justice and the smooth and efficient functioning of the judicial
process require that disputes should be
resolved within a reasonable
time. The delays that occurred in this instance bring the whole
judicial process into disrepute and
may result in a loss of
confidence in the legal profession, including the judiciary. Judges
should be astute not to grant postponements
of cases unless adequate
reasons are advanced therefor and legal practitioners should take
their responsibilities to the court and
their clients far more
seriously. I am appalled that in this case the matter had to be
removed from the roll because of the non-appearance
of counsel and
that this in itself resulted in a delay of more than twenty months.

[6] I turn now to deal with the
merits of the appeal. Regrettably the facts cannot be stated
briefly. The plaintiff claimed damages
for two separate alleged acts
of defamation – M500 000 against the first defendant and M250 000
against the second defendant.
There was also a claim of M4 500
against the first defendant, being the cost to the plaintiff of a
coffin which she had purchased
for the burial of her granddaughter
Lemohang Thamae (“Lemohang”) and which, according to the
plaintiff, had been removed by the
first defendant.

[7] To the plaintiff’s summons and
declaration, the defendant’s attorneys entered an appearance to
defend timeously on 14 February
2001. No plea was filed and on 26
March 2001 the plaintiff’s attorneys gave the defendant’s
attorneys a notice to file a plea
within 72 hours. There was no
response to the notice and on 12 July 2001 the plaintiff’s
attorneys served a notice of bar on
the defendants’ attorneys. Two
matters require to be noted at this stage. The first is that the
notice to file a plea does not
appear to comply with High Court Rule
26(2) and it may therefore be open to argument whether the defendants
were properly barred
from pleading. Secondly, in terms of Rule 26(3)
a defendant is barred automatically if he fails to comply with a Rule
26(2) notice
and no notice of bar may be necessary. Incidentally,
the notice of bar erroneously states that the defendants were barred
because
of their failure to plead in terms of Rule 27(3). The
validity of the notice to plead and the subsequent barring of the
defendants
were not argued in this Court and I refrain from
expressing any opinion thereon, for parties appear to have assumed,
both in the
court a quo and on appeal that the defendants had
been duly barred and it is on this assumption that I propose to
consider the matter.

[8] There is some uncertainly as to
what occurred thereafter. In her affidavit opposing rescission the
plaintiff sketches the following
chronology:

1. A
   notice of set down was served on the defendants’ attorneys on 9
   August 2001;

   
   

2. On
   that very day the matter was postponed for two weeks at the request
   of the defendants’ attorney;

   
   

3. The
   next hearing was on 20^th August (11 days later) when, the
   attorneys for the defendants requested “a final postponement” to
   10 September;

   
   

4. Counsel
   for the defendant was served with a notice of set down for 10
   September;

   
   

5. On 10
   September evidence was led in respect of the plaintiff’s claim for
   damages.

   
   

[9] The Court record, however, reflects that there was a postponement
from 13 August to 20 August and a further postponement from
20 August
to 27 August. We do not know what happened on 27 August as the next
entry on the record is the appearance on 10 September.
It is also
not clear how the matter came before the Court on that day. The
notice of set down for 10 September was not annexed to
the affidavit
and does not appear in the record. There is nothing before us to
show that the notice of set down complied with Rule
27(3) or that the
defendants were given proper notice of the hearing. I conclude this
part of the background by referring to certain
remarks of the learned
judge a quo in her judgment refusing rescission. She said the
following:

“The
matter was set down for hearing on 9 August 2001 and the
notice was served on the applicants
(my underlining). It was postponed to 13 August, 2001 and further to
20 August and 27 August. On 10 September it was finally heard.
Of
the first two postponements counsel for the
applicants had been in court and requested the postponements.”

[10] The discrepancies between the plaintiff’s averments, the court
record and the judgment are disturbing. In the circumstances
it is
not possible to give an accurate chronology of events from 9 August
to 10 September 2001. Court records, I emphasise, should
clearly
record each appearance and the order made under the name of the
presiding judge. All that can be said in this instance is
that there
is a possibility – and I go no further than this – that the
matter was not properly before the Court for the hearing
of a default
judgment on 10 September.

[11] Next for consideration is a more
detailed resume of the plaintiff’s claim and the defences raised by
the defendants. According
to the declaration the second defendant is
alleged to have said on 27 December 2000 that the plaintiff was a
witch and had killed
Lemohang. The first defendant, so it is
alleged, told a crowd of people at the funeral on 6 January 2001 that
the plaintiff was
responsible for Lemohang’s death. Both
defendants denied the plaintiff’s allegations, briefly put forward
their versions of
what had occurred and, in my view, said enough to
raise a prima facie defence. The first defendant also denied
removing the coffin. Had the defendants admitted to using the words
complained of, I
would nonetheless have had no difficulty in holding
that the defendants had extremely good prospects of success on the
quantum, having
regard to the extraordinary award of damages. There
is no doubt at all in our view that the damage award to the plaintiff
was not
only grossly excessive but is out of all proportion to the
circumstances surrounding the alleged defamations. I have carefully
considered
the evidence given by the plaintiff at the hearing and
there were no grounds at all for the court to have granted the
plaintiff damages
in an amount even approaching M250 000. In our
view the award was so unreasonable that we are able to conclude that
the learned
judge did not exercise a proper discretion. It may also
be noted that the court should have dealt separately with each claim
for
damages and should have made an appropriate and separate award
against each defendant.

[12] The learned Judge a quo, in refusing rescission, did not
deal with the defendants’ prospects of success. She decided that
as the defendants, in her view,
had not put forward a reasonable
explanation for their default, there was no need to consider the
prospects of success. In my judgment,
the learned Judge was wrong in
holding both that the defendants’ explanation was not reasonable
and in dealing with each requirement
for rescission in isolation.
Reliance was placed by the court a quo on the remarks of
Miller JA in Chetty v Law Society, Transvaal 1985 (2)
SA 756 (A) at 765 B-E, where it was pointed out that a party showing
no prospects of success will fail in an application
for rescission,
no matter how reasonable and convincing the reason for his default;
and that a party who could

“offer
no explanation of his default other than his disdain of the Rules was
nevertheless [not] permitted to have a judgment against
him rescinded
on the ground that he had reasonable prospects of
success in the merits.”

Miller JA went on to hold, however, that the appellant’s
explanation in the case before him was both “unsatisfactory and
unacceptable”
and that therefore there was no reason to make
findings in relation to the prospects of success (at 768 A-D).

[12] Now in an application for rescission what the applicant has to
show is good cause in order to succeed. In HDS Construction
(Pty) Ltd v Wait 1979 (2) SA 298 (E) Smalberger J
stated the position as follows at 300F – 301C :

“In
Grant
v Plumbers (Pty) Ltd 1949
(2) SA 470 (O) Brink J, in dealing with a similar provision, held (at
476) that in order to show good cause an applicant should
comply with
the following requirements:

1. (a) He
   must give a reasonable explanation of his default;

   
   

2. (b) his
   application must be made bona fide;

   
   

2. he
   must show that he has a bona fide defence to the plaintiff’s
   claim.

   
   

It is not disputed that
the defendant’s application is bona fide and that he has shown that
he has a bona fide defence to the plaintiff’s
claim. What is in
issue is whether he has given a reasonable explanation for his
default.

In determining whether or not good cause has been shown,
and more particularly in the present matter, whether the defendant
has given
a reasonable explanation for his default, the Court is
given a wide discretion in terms of Rule 31(2)(b). When dealing with
words
such as “good cause” and “sufficient cause” in other
Rules and enactments the Appellate Division has refrained from
attempting
an exhaustive definition of their meaning in order not to
abridge or fetter in any way the wide discretion implied by these
words
(Cairns’ Executors v Gaarn 1912 AD 181 at 186; Silber
v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352-3). The
Court’s discretion must be exercised after a proper consideration
of all the relevant circumstances.
While it was said in Grant’s
case that a Court should not come to the assistance of a defendant
whose default was wilful or due
to gross negligence, I agree with the
view of Howard J in the case of Saraiva Construction (Pty) Ltd v
Zululand Electrical and Engineering Wholesalers (Pty) Ltd 1975
(1) SA 612 (D) at 615, that while a Court may well decline to grant
relief where the default has been wilful or due to gross
negligence
it cannot be accepted

‘that the absence of
gross negligence in relation to the default is an essential
criterion, or an absolute prerequisite, for the granting
of relief
under Rule 31(2)(b)’.

It is but a factor to be considered in the overall
determination of whether good cause has been shown although it will
obviously weigh
heavily against the applicant for relief. The above
does not in my view detract in any way from the decision in this
Court in Vincolette v Calvert 1974 (4) SA 275 (E),”

[13] There is not, and never has been, a concise definition of what
constitutes good cause. It is a question that has to be decided
by
the trial judge upon a consideration of all the facts. In a recent
judgement of this Court – Mosaase v Rex C of A (CRI)
NO 12/05 – the President approved of the following passage in
Melane v Santam Insurance Ltd 1962 (4) SA 531 at 532
C-F:

“In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated : they are not individually decisive, for that would be
a piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus
of all the facts. Thus a slight delay and a good explanation may
help to compensate for prospects of success which are not strong.
Or
the importance of the issue and strong prospects of success may tend
to compensate for a long delay. And the respondent’s
interest in
finality must not be overlooked. I would add that discursiveness
should be discouraged in canvassing the prospects of
success in the
affidavits. I think that all the foregoing clearly emerge from
decisions of this Court, and therefore I need not
add to the
evergrowing burden of annotations by citing the cases. “

All of this shows that a court is obliged to look at the total
picture presented by all the facts and that, generally speaking, no
one factor should be considered in isolation from all the others
(see, further, De Witts Auto Body Repairs v Fedgen
Insurance Co Ltd 1994 (4) SA 705 (E) at 709 E-H).

[14] I now have to consider the explanation given by the defendants
for their default. Their explanation is contained in the following
paragraph of the first defendant’s founding affidavit:

“On the 5^th
February 2001 summons commencing action against my wife and I were
served at my house. After I became aware of the process, I gave
it
to my then attorneys K.E.M. Chambers with instructions to defend the
action on our behalf. Our attorneys there and then instructed
their
staff to file Notice of Appearance to Defend after they had been
given instructions as to our defence. During the interim
we had
misunderstandings with our attorneys on the question of fees. In the
meantime we expected our attorneys to be continuing
with the
necessary formalities and procedures relating to the case, as they
had never indicated to us that they would be unable to
continue, nor
did they formally withdraw as attorneys of record in the matter. Up
until to-day they have not withdrawn as such.
Had they withdrawn and
if we had been duly advised, we would have instructed another
attorney or defended ourselves. We say that
we never at any time
instructed our attorneys to abandon our defence. We want the matter
to go through all the stages of the trial
wherein we would present
our defence.”

The respondents emphasise further that they believed that the
attorneys were continuing to look after their interests in the
litigation,
despite the disagreement about fees. What emerges from
the affidavits, in essence, is a lack of contact and no communication
between
the attorneys and their clients. The defendants may have
been partly to blame for this, for they failed to make inquiries
about
the progress of their case. But the substantive fault,
according to the affidavits, was due to the attorneys’ failure to
keep
in touch with their clients. What is crucial, moreover, is that
the attorneys did not give notice to the defendants or the plaintiff
in terms of Rule 15 (4) that they had ceased to act in the
litigation. This is not disputed. Mrs Mpopo, who, we were informed,
is a member of the firm of attorneys representing the defendants,
appeared in court on the defendants’ behalf on two occasions
in
August 2001 when the matter was postponed. The plaintiff avers that
Mrs Mpopo was also in court when judgment was given on 10
September.
If she was, there is nothing on the record to show that she took part
in the proceedings. Indeed the record does not
reflect that she was
present. The defendants point out, moreover, that she had no
instructions to consent to judgment by default
being granted against
them.

[15] According to the facts set out above, the defendants believed
that their attorneys continued to represent them in their dispute
with the plaintiff and they did not know that default judgment was
being applied for. The learned judge a quo said, quite
correctly, that the defendants themselves made no effort to follow
the progress of the litigation, despite the disagreement
relating to
fees. This does not mean that the defendants were substantially
blameworthy. They were lay clients who had entrusted
the defence of
the case to attorneys who clearly represented them for some
considerable time and had never withdrawn from acting
in the
litigation. There is nothing to indicate that the defendants knew,
or even suspected, that the attorneys had received a demand
for a
plea, or that they were barred or that the plaintiff intended to
apply for default judgment against them. I add that the issues
in
the action are not complicated and that it would have been a
relatively simple and inexpensive procedure for the attorneys to
have filed a plea on behalf of the defendants. Why they did not do
so remains a mystery.

[16] The court a quo was
seemingly of the view that the defendants inevitably had to accept
responsibility for the neglect or fault of their attorneys.
The
learned judge, in this regard, said the following:

“The courts never
hesitate to penalise a litigant for the short – comings, if any, of
his counsel.”

That is not a correct reflection of the law. Depending upon the
circumstances a litigant may have to accept the consequences of
his
attorney’s flagrant and gross non – observance of the rules (See
Darries v Sheriff, Magistrate’s Court, Wynberg and
Another 1998 (3) SA 34 (SCA) at 44 B-G). But it is certainly not
the general rule that the neglect of an attorney, even if serious,
should
always be visited upon the client.

[17] The learned judge’s decision not to rescind the judgment was a
matter for her discretion. In exercising her discretion she
was
obliged to evaluate the conduct of the defendants and, indeed, that
of their attorneys, against the prospects of success in the
action
and the possible injustice to the defendants if the judgment was
allowed to stand. It was not the proper exercise of her
discretion
to say, as the learned judge did, that the defendants nevertheless
had a remedy open to them, namely, to claim damages
from the
attorneys if they were negligent. The question before the Court was
not whether the defendants had an alternative remedy
but whether they
had shown good cause for having the judgment rescinded.

[18] On a conspectus of all
the facts in this matter, the question of the defendants’ bona
fides is not in issue. From the outset they were steadfast in
their resolve to defend the plaintiff’s action. Their explanation
for
not pleading to the plaintiff’s declaration is not
unacceptable. On their understanding of the position they were
entitled to
adopt a passive attitude to the litigation. Moreover
they have disclosed a bona fide defence and their prospects of
success in the litigation, at least on the quantum of damages, are
excellent.

[19] It is therefore not difficult to
conclude that the defendants have shown good cause to have the
judgment rescinded. It is also
clear that the learned judge a quo
did not exercise a proper discretion in a number of respects. First,
she adopted a piecemeal approach in concluding that good cause
had
not been established. In particular, she did not even consider the
defendants’ prospects of success on the merits or the bona fides
of their defence disclosed in their affidavits. Second, she
penalised the defendants for the apparent neglect of their attorneys
because of her view that the client inevitably has to accept
responsibility for the attorney’s short-comings. Third, she
suggested
that the defendants could claim damages from their
attorneys if they established negligence, as if this was some form of
compensation
for refusing rescission. Finally, it is only necessary
to emphasise that in applications for rescission, a court should not
treat
each requirement in a vacuum. There is an obvious
inter-relationship between all the requirements and a weakness in one
respect
can be compensated for by strength in others. This will
result in justice to both parties.

[20] From the aforegoing it is clear
that the appeal should succeed. The following order is made:

1. 
   The appeal succeeds with costs:

   
   

2. 
   The order of the court a quo is set aside and is replaced
   with the following:

   
   

“(a) The writ of
execution signed by the Registrar on 12 November 2001 is set aside;

2. For
   the rest, paragraphs 2 (b) and (d) of the rule nisi issued by
   Monapathi J on 22 November 2001 are confirmed;

   
   

2. The
   default judgment granted on 10 September 2001 is rescinded and set
   aside;

   
   

2. The
   applicants are given leave to apply to uplift the bar, such
   application to be lodged on or before 21 November 2005;

   
   

(e) The first respondent is to pay the costs occasioned
by her opposition to the application for rescission.”

_______________

LS MELUNSKY

JUDGE OF APPEAL

I agree ________________

MM
RAMODIBEDI

JUDGE OF APPEAL

I agree ________________

FH
GROSSKOPF

JUDGE OF APPEAL

E.H.
Phoofolo for Appellants

Ms LV Mochaba for
Respondents