CIV/A/26/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

LOYISO
MPUMLWANA Appellant

v

JESSIE
RAMAKATANE 1st Respondent

TEBOHO
MABOTE 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M. P. Mofokeng on the 12th day of December,
1984

This is
an appeal against the decision of the learned magistrate wherein he
granted a recision of judgment to the Respondents on
the 29th day of
August, 1984.

The
appeal is based on the following grounds:-

1. That
   the learned magistrate erred and or misdirected himself when he
   found that Defendants/Respondents were within their time
   to enter
   appearance when in fact the defendants/respondents consented to
   judgment a fact which the magistrate did not consider
   in his
   judgment. The defendants/respondents were entitled to consent to
   judgment before entering appearance, vide Order X Rule
   1(i) (a).

   
   

2. That
   the decision of the magistrate is against the evidence which shows
   that defendants/respondents admitted liability all along
   and
   actually signed

   
   

a consent to judgment after having read the summons, and are now
delaying the proceedings in order to evade execution which has

already been served upon them.

2

It would
appear from the summons that the respondents were sued by the
applicant in the subordinate court for a sum of R482.30 and
costs, it
being alleged that that was the damage caused to the applicant's car
as a result of a collision with the 1st respondent's
car driven by
the 2nd respondent in the cause of his duty.

The
messenger of the court served copies of summons according to the
return of service on the 5th July, 1984, upon both respondents

personally at a given address. In fact, the return of service reads,
in part: "You are hereby informed that defendant was
on the 5th
July, 1984 served with summons thereby delivering/affixing a copy
thereby upon 1st and 2nd respondents personally at
the address given.
They signed consent to judgment." That was the reading of the
return of service by the messenger R.T. Nqosa.
On the strength of
that return, the clerk of the court entered default judgment for the
plaintiff with costs.

I have
read the judgment of the learned magistrate in the court a quo and
have no quarrel with it. However, as far as this appeal
is concerned,
on the application of the Rules, Order No. 10 dealing with judgment
by consent or default states thus in rule sub-rule
6 as inserted by
G.N. No. 49 of 1962:

" Whenever consent to judgment is given by signing the form of
consent endorsed on the original summons the messenger effecting

service shall satisfy himself that the defendant so consenting
understands the purport of the summons and this effect of his so

signing". (My underlining)

This is
what the messenger in his affidavit says he did. He says on the 5th
July, 1984 he arrived at the office of

3

Speedy
Taxis where he met the 1st and 2nd Respondents and served them
personally with the summons. He says: "Both of them read
the
summons for about fifteen (15) minutes. When they had finished I
asked them to sign my copies of the summons. They took them,
read
them also for about ten (10) minutes and then signed them on the
portion for consent to judgment." It is crystal clear
that
although it is alleged that the respondents read the summons, the
messenger did not satisfy himself in terms of section 1
(6) as quoted
above. That is an irregularity and in my view,and if there is any
irregularity in the consent as it was not explained
to them what the
purpose of the summons was and the effect of signing the consent form
it may result in the consent judgment being
set aside.

The 1st
respondent denies that he ever signed a consent form. The 2nd
respondent agrees that he signed the summons but then says
it was at
the spot indicated by the messenger. He was not signing a consent
form deliberately It is therefore clear that there
was no compliance
with the provisions of Rule 1 sub-section 6 of Order No. 10. However,
of greater moment is the non-compliance
with Rule 4 sub-section 4
dealing with the position where claim is for damages. If the request
is made for consent to judgment,
in such a case then the matter is
brought to Che attention of the court and the plaintiff shall furnish
to the court evidence either
oral or by affidavit of the nature and
extent of the damages suffered by him and the court shall thereupon
assess the amount recoverable
by the plaintiff as damages and shall
enter judgment accordingly. In this particular case it is not the
court which entered the

4

judgment,
but the clerk of the court. There was, therefore, no valid judgment.
The respondents were quite entitled to have entered
their notice of
appearance to the action when they did.

Now, in
an action for damages sustained in a motor car collision, plaintiff
must give evidence concerning not only the quantum but
the question
of the cause of action. It must be determined whether there has been
contributory negligence and whether there should
be apportionment of
damages. These things were not done in the present matter before me.
This is the second irregularity both of
which, in my view, are
serious.

The
judgment, therefore, entered against both respondents is irregular in
another sense in that the procedures laid down in the
Rules of the
subordinate courts Proclamation were not complied with. It may be
mentioned, in passing, that the respondents satisfied
the court a quo
on the principles laid down in the case of Lebamang Ntisa &
Others v Tankiso Flee, 1980 (2) L.L.R. p.533 where
it was stated by
the learned Chief Justice T.S. Cotran:

"
Before the court will exercise the wide discretion it has in
application for a recission of judgment there are three essentials

that the applicant must discharge:

1. he
   must explain to the court's satisfaction the reasons for the
   default;

   
   

2. he
   must persuade the court that the application is bona fide and not
   made with the intention

   
   

of merely delaying the plaintiff's claim;

3. he
   must show a bona fide defence to the plaintiff's claim."

   
   

5

In this
particular case the respondents were not in default as they entered
notice to defend on the date on which default judgment
was endorsed
on the file. However, they had to make an application for a
rescission of that

judgment
which had erroneously been noted against them. They have shown, on
their papers, that they have a bona fide defence and
their defence of
the action was not a frivolous one or made with the intention of
delaying the applicant's claim. They had a bona
fide defence to the
plaintiff's claim. All these matters were canvassed before the
learned magistrate in the court a quo.

In the
circumstances of this case the court can come to no other conclusion
but to dismiss the appeal with costs and it is accordingly
so
ordered.

JUDGE

12th
December,, 1984

For the
Appellant : Mr. Kambule

For the
Respondents : Mr. Matsau