CIV/T/61/82
IN THE HIGH COURT OF LESOTHO
In the Matter between
THABANG SAUL THAKHISI Plaintiff
and
SELEMENG ELIZA THAKHISI Defendant
JUDGMENT
Delivered by the Hon. Mr Justice B K. Molai on the 23rd day of August, 1985.
The Defendant herein has filed an application in which she moves the court for an order couched in the following terms
"Setting aside the decree of divorce granted by this Hon. Court against the Defendant on the 9th January, 1984.
Giving leave to the Defendant to show cause why a final degree of divorce shall not be granted against her
Granting the Defendant such further and/or alternative relief.
Directing the Plaintiff to pay costs of suit in the event of opposition.
The application is opposed by the Plaintiff.
Plaintiff and Defendant were husband and wife married in community of property on 7th March, 1980. On 8th February, 1982, Plaintiff filed with the Registrar of this Court summons commencing action in which he claimed against the Defendant restitution of conjugal rights failing which a decree of divorce on the ground of malicious desertion, division of the joint estate and costs of suit
The Defendant who had engaged the services of a legal practitioner initially intimated her intention to defend the action and accordingly filed her plea in which she denied to have deserted the Plaintiff. She stated that she and the Plaintiff had always lived together at
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the matrimonial home and afforded each other marital privillage.
The matter was finally set down for hearing on 5th December, 1983. Both parties and their legal representatives were in attendance on the day of hearing when counsel for the Defendant advised the Court that Defendant no longer wished to defend the action which should, therefore, proceed uncontested Plaintiff was accordingly allowed to lead formal evidence at the end of which a restitution order returnable on or before the 12th December, 1983 was granted against the Defendant in terms of the prayers in the summons The Defendant was personally served with the order on the 8th December, 1983
On 19th December, 1983, the Plaintiff filed with the Registrar an affidavit in which he deposed that contrary to the order issued by the Court on 5th December, 1983, the Defendant had failed to restore conjugal rights on or before the 12th December, 1983 The affidavit was served on and received by counsel for the Defendant on the same day, 19th December, 1985.
On 9th January, 1984, all the parties and their legal representatives were again before the court when counsel for the Plaintiff applied for final decree of divorce on the basis of Defendant's failure to restore conjugal rights. No opposition was raised by counsel for the Defendant and the court accordingly granted a final decree of divorce as prayed.
However, on 12th January, 1984, the Defendant filed the present application in which she moved the Court as aforementioned In her founding affidavit, the defendant deposed that she had engaged the services of her attorney, Mr. Masoabi to defend the action which Plaintiff had instituted against her for divorce When on 5th December, 1983, Plaintiff gave formal evidence she was in court but Mr Masoabi was outside the courtroom and so the court granted the restitution order without Mr. Masoabi opposing it.
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It may be mentioned here that the record does not seem to lend support to Defendant's allegation that Mr. Masoabi was not in the courtroom when Plaintiff gave | formal evidence for the judge has clearly noted on the file that when the case started on 5th December, 1983 it was Mr. Masoabi who advised him that the Defendant had no defence to advance at that stage and counsel for the Plaintiff could, therefore, proceed unopposed.
According to Defendant, on receipt of the restitution order, she informed Mr Masoabi who, however, advised her not to worry as he would deal with the matter on the return day, the 9th January, 1984 Mr. Masoabi never advised her that she would have to file an affidavit to show cause why a decree of divorce could not be granted against her He instead, advised her that he would oppose the Plaintiff's application for a final decree of divorce. Defendant conceded that on 9th January, 1984, she and Mr. Masoabi were in Court when Plaintiff's attorney applied for the final decree of divorce and Mr.Masoabi did not stand to oppose it, hence the granting of the final order of divorce.
Defendant deposed that immediately after the decree of divorce had been pronounced she took the matter up with Mr Masoabi who told her that she had not understood what had taken place. She further deposed that she had never instructed Mr Masoabi to withdraw her defence/plea in the matter and in so doing Mr. Masoabi clearly acted against her specific instructions to defend the action which her husband had instituted against her
In his answering affidavit, Plaintiff averred that the arrangement that the case should proceed uncontested was the result of long negotiations between the parties and defendant's denial of the knowledge thereof was totally void of the truth What transpired between the defendant and her attorney, Mr. Masoabi fell under privillaged correspondence and he was not in a position to know. He, however, argued that it was unbelievable that Mr. Masoabi, an officer of this Court could have acted against the
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instructions of his client in this matter as the Defendant clearly wanted the court to believe. The application should, therefore, be dismissed with costs. I think there is some force in the argument.
From the facts of this case, it is common cause that Mr Masoabi, who represented the Defendant, allowed the divorce case instituted by the Plaintiff against the Defendant to proceed uncontested The salient question is whether or not in making the arrangement Mr. Masoabi, acted against the Defendant's specific instructions As Ward J. once put it in O'Neill v. O'Neill 1910 W.L.D. 186 at p.188
"The ordinary rule is that where counsel makes an unathorised arrangement on behalf of his cliennt ... the court will set the arrangement aside."
It is, however, to be noted that while in O'Neill v. O'Neill, supra, counsel for the applicant filed an affidavit in support of the Applicant's averment that he had acted against her instructions, no such affidavit has been filed by Mr. Masoabi, counsel for the Defendant in the present case We have only the word of the Defendant against that of the Plaintiff that Mr. Masoabi made an unauthorised arrangement for the case to proceed uncontested That being so, I take the view that O'Neill v O'Neill, supra,is distin-quisable from the present case and, therefore, no authority that where counsel for the defendant has not filed an affidavit to the effect that he had, indeed, acted against the specific instructions of his client, the court is empowered to set aside the judgment deliberately made.
Moreover, as the application is clearly based on the allegation that Mr. Masoabi had acted against the specific instructions of the Defendant but Mr. Masoabi himself has not filed any affidavit in that regard , the allegation seems to me an incompetent hearsay evidence or no evidence at all An application based on no evidence or incompetent hearsay evidence cannot, in my view, be granted (Visser v. Estate Colins, 1952(2) S A.(c) 546 at 552).
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In the premises, it is obvious that the view that I take is that the applicant cannot be entitled to the reliefs she has asked for and her application is accordingly dismissed with costs as prayed.
B K. MOLAI
JUDGE
23rd August, 1985
For Plaintiff Mr Matsau
For Defendant Mr Maqutu
