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CIV/T/163/93

IN THE HIGH COURT OF LESOTHO
In the matter
between:

SYSTEM ARCH (PTY) LIMITED Plaintiff

and

SOPHIA LEKHANYA 1st Defendant

PALESA LEKHANYA 2nd Defendant

CHRISTOPHER LEKHANYA 3rd Defendant

For Applicants/Defendants : Mr. M.T. Matsau
For
Respondent/PlainnfF : Mr. K. Mohau

Judgment

Delivered by the Honourable Mr. Justice T. Monapathi on
the 28th day of February 2000

I thought justice needed that the application be heard
late in the afternoon despite hushed pleas for a postponement and a
demonstrated
reluctance on both Counsel to have filed heads of
argument. My concern was for the litigants. I was

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serious when I postponed the case to the earliest
convenient date.

This application was filed on the 28th April 1999. It
was for stay of execution of default judgment, the setting aside of
that default
judgment and related relief as shown in prayers l(c) and
(d) of the notice of motion. It became opposed with an opposing
affidavit
deposed to by Mr. Molomo Mohale a director of the
Plaintiff. No replying affidavit was filed. The application came
almost five (5)
years after the disputed service.

I was told, during argument, that the requirement of a
successful application of this kind are: Firstly, that the enability
or failure
to enter appearance must not have been wilful. There must
have been a just or reasonable cause for failure to enter appearance.
And
furthermore that the Defendant must have a bona fide defence to
the claim against him or her. There must not have been a delay in
applying for rescission and thereby indicating an intention solely to
delay the Plaintiff in realizing the fruits of his judgment.
Finally
that these requirements must all go together. This would be so if the
circumstances were those under Rule 27 or the application
was sought
to be made under that rule. See comments in DOTI STORE v HERSCHEL
FOODS PTY LTD 1982-84 LLR 338 and LOTI BRICK (PTY) LTD
v MPHOPU AND
ORS 1991-1995 LLR 446 This was therefore not quite accurate where the
application seemed to be made under Rule 45.

The founding affidavit of the First Defendant showed
that the three Defendants were directors and shareholders of a
company called
Sophia Enterprises Services (Proprietary) Ltd. (Sophia
Company) registered on the 22nd February 1991. Its memorandum and
articles
of association were annexed as "SL2" to the
affidavit. All the directors were shown to be of the same postal
address of
P.O. Box 209, Thaba Tseka.

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The First Defendant described herself as employed as a
manager at a petrol filling station at Thaba-Tseka owned by Sophia
Company.
The Plaintiff is deponent has answered this to say that the
person he found at the filling station represented herself as Palesa
Lekhanya (Second Defendant). First Defendant had been advised by her
husband that the Deputy Sheriff had on or about the 20th April
1999
served a writ of execution at their residence in Maseru. In that writ
she was cited as First Defendant. It was in respect of
a certain
judgment which was obtained by default against "the Defendants"
on the 2nd August 1993.

It was common cause, inasmuch as "SL1" (Deputy
Sheriffs return) showed, , that on the 29th April 1993 summons was
served
only on the Second Defendant. It stated further that the
Deputy Sheriff has failed to find the other Defendants. In this
regard I
noted the following points were sought to be made by the
other Defendants: That the return did not show where in particular
the Second
Defendant was served. Secondly that it was not being said
that the other Defendants were inmates or members of the household of
the
Second Defendant. It was submitted that it could not be accurate
in fact or in law that the Plaintiff should say:

"I aver that is absolutely beyond belief that the
Second Defendant could keep service of the summons all to herself for
so may
years. 1 aver that service of the summons upon the Second
Defendant was in the circumstances valid service even against the
other
Defendants."

It was contended that no such inference was supportable
and no principle allowed for such a presumption. In addition it was
contended,
against what was sought to be presumed above, that the
dearth of further information from the return of service made things
even
more unhelpful. I would easily find that the Defendant

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had a good explanation for her failure to defend.

That the Deputy Sheriffs return did not show the place
of service made it easier for the First Defendant to have said she
did not
know of the summons and at that date of service she was far
away in Thaba-Tseka. She added that the Second Defendant never gave
him
a copy of the summons as a result she never became aware of the
same. In this she was supported by the affidavit of the Second
Defendant.
For these reasons she said she was not in wilful default
of entry of appearance to defend the execution. She furthermore added
the
submission that she had a bona fide defence to the action in that
she had never commanded the Plaintiff to do any design.

The Third Defendant said he was advised by his father
that on or about the 20th April 1992 a deputy Sheriff of this Court
had gone
to execute a writ against them at his parental home at Ha
Mabote, Maseru. That Defendant was advised by his attorneys of record
that
it appeared that there on the Deputy Sheriffs return of service
the summons was served on the 2nd Defendant on the 29th April 1993.
The summons had shown his address as c/o Messrs T. Hlaoli & Co.
Nkhatho Building, Maseru. The reason for this was not known to
the
Defendant. Neither did he understand why the summons was not served
at that address. He was consequently not informed of the
summons.

At that time of the alleged service the Third Defendant
said he was attending school in Bloemfontein where he was lodging.
This would
support a finding that there was a reasonable explanation
for this Defendant's failure to have entered appearance to defend. I
would
cite the same reasons, concerning the Deputy Sheriffs failure
to state necessary aspects of his service, in favour of this
Defendant.

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In a similar manner he submitted that he had a bona fide
defence to the Plaintiffs action in that he had never personally and
I or
through his agent instructed the Plaintiff to do any design work
at anytime in respect of an hotel or any type of a building. He
could
not therefore prior to the issuance of the summons nor anytime
thereafter could he have accepted any ratified any drawings
from the
Plaintiff as being correct.

Mr. Matsau argued that the fact of the First and Third
Defendant being directors of Sophia Company did not speak against
them with
regard to whether they had a bona fide defence to the claim
against them. This he sought support for by reference to there having
been, on the papers, no dealing with any of the directors by the
Plaintiff except one Hulana whose address was cited at Sophia
Enterprises,
Thaba-Tseka. The First and Third Defendants while
stating that they were directors of Sophia Company reiterated that
the Company
did not at any time ever instruct the Plaintiff nor
authorize the said Hulana either as its agent nor in any capacity
whatsoever
to commission the Plaintiff to make any drawings for the
company.

In addition to the fact that Molomo Mohale said the
person he found at the filling station owned by Sophia Company was
the Second
Defendant, there was simply too plentiful references to
the so called Sophia Enterprises in the papers in relation to the
dealings
between Plaintiff, Hulana and some of the defendants. See
also the minutes of 26th March 1991. Another Court would probably
find
a distinct business relationship. Or it would probably not.

It will end up being very much full of doubt that Sophia
Company which runs a filling station managed by the Second Defendant
had
a similar (not same) name with an entity which went about to
negotiate plans for design of a hotel.

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Another Court may say that it was an inexplicable
puzzle. In addition that Court might place significance on the
coincidence. The
attempts by the Defendants to dissociate themselves
from the Plaintiff which the Plaintiff spoke about in paragraph 7 of
Molomo Mohale's
affidavit and the whole gamut of facts seeking to
show ignorance of the activities of the said Hulana by the Defendants
will require
some good effort on the part of the Defendants.

I agreed with Mr. Mohau for Plaintiff when he contended
that the defence, that when Plaintiff agreed with Sophia Enterprises
it was
not Sophia Company, was not raised in the papers in the fine
form in which it appeared as a point of law during argument. I
decided
that Mr. Matsau would be entitled to raise it as a point of
law. This was besides the question as to whether it was a valid point
or not. This point which was a legal point as to the legal persona
(whether it was a company or not) that the Plaintiff dealt with
belongs to those probabilities that I have spoken about. It sufficed
if I said it was an arguable point. It could not be said to
be
fanciful.

I go back to say that if a judgment was obtained by
mistake, where service had not been proper that is against the rules
of Court,
it had been a nullity. All things such as execution
following on the improper process would be equally bad because they
came as a
result of a mistake common to both parties, which if the
Court had been made aware it would not have entered judgment. See
COMPUTER
SYSTEMS AND NETWORK (PTY) LTD v MASERU CITY COUNCIL
1991-1996 LLR 82 at 92. It was not proved on the papers that there
had been service
of summons on First Defendant and Third Defendant.

I allowed the application for rescission and stay of
execution as against the First and Third Defendants. I ordered that
costs would
be costs in the action. I

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made the following further orders.

1. 
   That the Two Defendants must file all their pleas
   within 14 days from
   the 28th February 2000.

   
   

2. 
   Priority be given to disposing of the action by the
   Registrar by
   appointing three days of hearing which must not be
   later than the 15th
   June 2000.

   
   

T. MONAPATHI
Judge

28th February, 200