CIV/APN/92/2004
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:
PHATELA MOTHAE APPLICANT
VS
THE DEPUTY SHERIFF - MR MONYAKO
& 3 OTHERS RESPONDENT
REASONS FOR JUDGMENT
On the 16th April 2004 Thamae Phooko and Monaheng Thaane brought an applicant against Phatela Mothae for rescission of judgment in the following terms:
An order rescinding or varying the orders obtained on the 27th February 2004 and on the 3rd March 2004 respectively as having been erroneously sought or erroneously granted in the absence of parties affected thereby.
Awarding costs of the application to the applicants.
Granting applicant's further and/or alternative relief.
I rescinded judgment on the 28th February 2005 and directed that costs should be costs in the cause. I promised to file my reasons on the 14lh March 2005.
The facts of this application were that Phatela Mothae had brought an urgent application against Thamae Phooko, Monaheng Thaane, the Deputy Sheriff and the estate of the late Mothae Thaane. In that application Phatela Mothae was asking from the court an order setting aside a sale in execution the sale of his rights and interest (including in improvements) on plot 12292 - 130 Hillsview Maseru.
There is a tendency to lose sight of the reason courts grant default judgment. The reason is to ensure that justice is dispensed speedily. The defendant is consequently prevented from delaying court proceedings and thereby frustrate plaintiff from obtaining the remedy he is entitled to. The courts remain bound to hear both side - but they have discretion to refuse to rescind a default judgment at the request of a litigant who is in willful default. Even in rescinding a default a bona fide defence and is not merely wasting the time of the court and of the other side.
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It is in very rare case that courts will refuse to use its discretion to rescind a judgment - if the defendant is not in willful default Such a decision has to be based on good grounds. In De wet & Others v Western Bank Ltd 1979 (2) SA 1031 the appellate division in refusing to rescind the judgment said the appellate division in refusing to rescind the judgment said "the appellants were the authors of their own misfortune and that it would be inequitable to visit the other party to the action with the prejudice and inconvenience flowing from such conduct." In that case the court was enforcing the principle that justice - that both sides in a court of justice must be heard.
In Evans v Bartlam 1937AC 373 at 480 Lord Atkin in the House of Lords put the principle of audi alteram partem in the rescission of default judgments as follows:
"The principle obviously is that unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to where that has only been obtained by a failure to follow any of the rules of procedure."
In short courts are not anxious to shut their doors against any litigant except for good reasons and on weighty grounds. It is therefore not always wise for counsel to oppose applications for rescission of judgment unreasonably. Court are entitled to react negatively to unreasonable oppositions.
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It is unnecessary to go into details except to say there had been judgment in the sum of M7840.00 in CIV/T/284/93. By the 19th November 1993 the interest had become M22260.00. Between the date of judgment and 27lh March 94, the judgment debtor had paid M2136.40. The property had been bonded to the Lesotho Bank, but that Bank had not be involved in the attachment and sale of the immovable property.
On the 3rd March 2004 (the return day) Lehohla J wrote the following minute on the file.
"IN CHAMBERS: For applicant Mr Mathaba, today is return date. But the return of service with respect to some of the respondents is not satisfactory. Matter stood down pending clearing of defects as to service by applicant's counsel."
On 4th March 2004 Lehohla CJ minuted. IN CHAMBERS
Resumed:
Representation: As was on 03-03-2004.
Despite having been served the respondents have not filed opposing papers.
Applicant's counsel seeks cancellation on grounds that it was defective in
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that it was not advertised, it was not declared by order of court specially executable, notwithstanding that it was bonded to the Lesotho Bank, nonetheless the latter were not consulted about the intended auction. Judgment creditor died prior to the issuance of the writs issued in his name. Order granted n terms of prayers 1 (a) (b) (c) (e).
The points for determination are whether the application and the interim order were served on the respondents and secondly whether the order dated 4th March 2004 was erroneously issued and that judgment should be rescinded as applicants claim.
In the English Supreme Court Practice 1995 Volume 1 by Jacobs & Others 0.13/7/1 the following is stated about an application for default judgment:
"In the absence of an acknowledgment in default of acknowledgment of service, the plaintiff must first prove due service of the writ upon defendant. This is an essential condition, for the jurisdiction to enter judgment in default of acknowledgment of service is dependent upon this condition being properly satisfied."
In this case therefore the first issue - which the court must first determine is the jurisdictional one that is whether respondents who are the applicants
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were served. If the respondents/ applicants were not served, then this application for rescission of judgment has to be granted.
The problem that respondents has in discharging this onus that service on the other side was properly served has two dimensions, namely, the return of service queried by Lehohla CJ - and the fact that the final order was granted on the 4th March 2004 and not on the return day of 3rd March 2004.
The problem I have is that there are two returns of service, ail of whom were first presented to the Registrar for approval on the 3rd March 2004. I cannot be sure which of the two returns of service was rejected as improper by Lehohla CJ. Both of them state that the Deputy Sheriff (first respondent) was served on the 27th February 2004. In respect of the other respondents most of whom are applicants in this rescission of judgment application, there are the two returns which the Registrar approved on the 3rd March 2004 showing the following:
First return of service:
"Which second respondent was served through Mrs Motena a lady aged around 48 years at Seapoint where respondent stays. While Mrs 'M'arethabile Mofolo at Mazenod at the residence
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of Mr Mothae she aged around 33 years on 29/02/2004. They were all served with court order and application."
On the side of the of the return of service at right angles with what is written above, the following is written:
"The importance of same was explained to them. I had telephonically called 2nd respondent who said I should leave the court process with Mrs Motena at Seapoint where he stays. Mrs Rethabile Mofolo stays At the residence of the late Mothae Thaane she is the younger sister Of the wife of the late Mr Mothae Thaane."
The second return of service states in respect of the other respondents.
While 2nd, 3rd and 4th respondents served on the 28-29 February, 2004 through their relatives at Mazenod and Seapoint."
Normally when the court rejects a return of service, it orders that a fresh service should take place. Both the first and the second returns of service are highly unsatisfactory. In the first one there is an addition on the side that the Deputy Sheriff "had telephonically called 2nd respondent." This gives the impression that he knew where 2nd respondent was and yet he did not serve him. Motena is the first name of a woman - it is clear that the Deputy Sheriff did not even know the surname of this lady that he claimed received second respondents papers. This court process of return of service was treated most informally - contrary to court practice and the rules of the court. Each respondent was entitled to be served individually and to have a
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clear unequivocal return of service proving (at least that) they were served in terms of the Rules of court. In these urgent matters since specific orders are often sought against respondent's personal service cannot be avoided.
Without having discharged onus that there was service on the other side, Mr Shale for respondents wanted the doors shut in the face of applicants respondents merely because a default judgment had been taken. He strenuously defended the return of service that Lehohla CJ could not accept. Apparently there was an amended one, but it was not clear which was the one Lehohla CJ had rejected. In any event both returns for service were unsatisfactory. What Mr Shale lost sight of was that service had to be unchallengeable before respondents could be treated as being in wilful default. Mr Shale lost sight of the principle that:
"It must be borne in mind that an order granted ex-parte is by its nature provisional, irrespective of the form it takes. Once it is contested and the matter is reconsidered by the court, the plaintiff is in no better position in other respects than when the order was first sought." - Per Nugent J in Ghomeshi - Bozorg vs Yousefi 1998 (I) SA 699 at page 692.
When a court relaxes it rules in an urgent matter, personal service becomes very important because the respondent is expected to reply in a short time. If this is not done the audi alteream partem principle is likely to be
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breached. Consequently the applicant cannot just rely on Rule 4(1) (b\ which makes leaving a copy of the process at respondent's residence with any person above the age of 16 sufficient. Sometimes rules of court allow service by registered post. If there is no certainty that the court process was received the "sensible, and perhaps the quickest and cheapest course open to plaintiff is to accept that the writ has not been property served, otherwise the defendant will be entitled to have any default judgment set aside ex debito justitiae" See the English Supreme Court Practice Vol 1 0 13/7/5 at page 136. In other words in this case it should have been wiser and time saving for respondents not to contest that applicants had not been properly served and not oppose the application for rescission of judgment. In White v Heston 1968 (2) ALLER 842 the Court of Appeal felt in such cases, costs should not be in the cause - rescission judgment should be granted unconditionally. Mr Shale for respondent is fortunate that I did not order him to pay costs of opposing this application for rescission of judgment.
Courts attach such great importance to personal service that in Fraind vs Nothmann 1991 (3) SA 837 that it rescinded judgment against a fugitive from justice because it could not be disproved that he was unaware that summons had been issued against him.
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Justice can never be deemed to be done without hearing both sides unless the other side wilfully chooses not to be heard. King J in Maujaan vs Standard Bank of SA (Pty) Ltd 1994 (3) SA 801 at page 803 HI defined wilfulness as:
"deliberateness in the sense of knowledge of the action and its consequences and a freely taken decision to refrain from giving a notice of intention to defend. Whatever motivation for this conduct may be."
To defeat applicants' application for rescission of judgment Mr Shale had to persuade me that applicants were properly served but they deliberately elected not to defend the application.
Mr Mahlakeng attacked the Deputy Sheriff as being an exployee of the firm of attorneys that respondents had engaged. I consider this speculative hearsay on which no court could act. When on account or urgency rules are relaxed or dispensed with and an interim order is issued the intention is not to put the absent party at a disadvantage.
The audi alteram partem rule remains in full operation. When the court does not see the other side on the return day, the court has to be reluctant to proceed against the absent party. The applicant has to persuade the court
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that service was proper - respondent elected not to be present. In Stander vs Stander 1997 (3) SA 922 the court emphasized the need to inform respondents and other interested parties "so that they are aware of the date on which the case will be heard, and so that they can decide whether they wish to give reasons on the return day why the order sought by the applicant should be granted or not." (Stander vs Stander at page 923 FG). The court also said "practitioners should bear in mind that when the return day of the rule nisi is proposed, the sheriff does not react immediately to carry out the mandate."
In this case the court queried the return of service and stood the matter down. Applicant's counsel did not come back to court on the return day of the rule nisi - thereby allowing it to lapse. On the following day the 4 th March 2004, the court by mistake proceeded to confirm a lapse rule nisi.
Respondents (now applicants) say they had not been served and the returns of service support them - in as much as other people who are not the respondents/applicants were in fact served. For a rule to be confirmed service of applicants must be demonstrated clearly and directly and not in an equivocal manner.
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In this case service was irregular and invalid. Had the court been aware that the rule nisi had lapsed and there been no proper service, it would not have granted the order. Promedia Drukkers ofUitgevers Edms Bpk vs Kaimgivitz & Others 1996 (4) SA 411 I consider the hasty amendment of the Return of Service which took place (when the matter was stood down) highly prejudicial to the respondents who were not heard.
It was therefore unavoidable to rescind the default judgment as already stated.
W.C.M. MAQUTU
JUDGE
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