HIGH COURT OF LESOTHO
DEPUTY SHERIFF - MR MONYAKO
16th April 2004 Thamae Phooko and Monaheng Thaane brought an
applicant against Phatela Mothae for rescission of judgment
order rescinding or varying the orders obtained on the 27th February
2004 and on the 3rd March 2004 respectively as having
erroneously sought or erroneously granted in the absence of parties
costs of the application to the applicants.
applicant's further and/or alternative relief.
rescinded judgment on the 28th February 2005 and directed that costs
should be costs in the cause. I promised to file my reasons
14lh March 2005.
of this application were that Phatela Mothae had brought an urgent
application against Thamae Phooko, Monaheng Thaane,
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
a tendency to lose sight of the reason courts grant default judgment.
The reason is to ensure that justice is dispensed
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.
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
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
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.
v Bartlam 1937AC 373 at 480 Lord Atkin in the House of Lords put the
principle of audi alteram partem in the rescission
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
the power to where that has only been obtained by a failure to follow
any of the rules of procedure."
courts are not anxious to shut their doors against any litigant
except for good reasons and on weighty grounds. It is therefore
always wise for counsel to oppose applications for rescission of
judgment unreasonably. Court are entitled to react negatively
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
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
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
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
Representation: As was on 03-03-2004.
Despite having been served the respondents have not filed opposing
Applicant's counsel seeks cancellation on grounds that it was
was not advertised, it was not declared by order of court specially
executable, notwithstanding that it was bonded to the
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).
points for determination are whether the application and the interim
order were served on the respondents and secondly whether
dated 4th March 2004 was erroneously issued and that judgment should
be rescinded as applicants claim.
English Supreme Court Practice 1995 Volume 1 by Jacobs & Others
0.13/7/1 the following is stated about an application
"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
service is dependent upon this condition being properly satisfied."
case therefore the first issue - which the court must first determine
is the jurisdictional one that is whether respondents
who are the
served. If the respondents/ applicants were not served, then this
application for rescission of judgment has to be granted.
problem that respondents has in discharging this onus that service on
the other side was properly served has two dimensions,
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.
problem I have is that there are two returns of service, ail of whom
were first presented to the Registrar for approval on the
2004. I cannot be sure which of the two returns of service was
rejected as improper by Lehohla CJ. Both of them state
Deputy Sheriff (first respondent) was served on the 27th February
2004. In respect of the other respondents most of whom
in this rescission of judgment application, there are the two returns
which the Registrar approved on the 3rd March
2004 showing the
return of service:
"Which second respondent was served through Mrs Motena a lady
aged around 48 years at Seapoint where respondent stays. While
'M'arethabile Mofolo at Mazenod at the residence
of Mr Mothae she aged around 33 years on 29/02/2004. They were all
served with court order and application."
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
process with Mrs Motena at Seapoint where he stays. Mrs
Rethabile Mofolo stays At the residence of the late Mothae Thaane she
the younger sister Of the wife of the late Mr Mothae Thaane."
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."
when the court rejects a return of service, it orders that a fresh
service should take place. Both the first and the second
service are highly unsatisfactory. In the first one there is an
addition on the side that the Deputy Sheriff "had
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
unequivocal return of service proving (at least that) they were
served in terms of the Rules of court. In these urgent matters
specific orders are often sought against respondent's personal
service cannot be avoided.
having discharged onus that there was service on the other side, Mr
Shale for respondents wanted the doors shut in the face
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
"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.
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
Consequently the applicant cannot just rely on Rule 4(1) (b\ which
makes leaving a copy of the process at respondent's
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
should not be in the cause - rescission judgment should
be granted unconditionally. Mr Shale for respondent is fortunate that
did not order him to pay costs of opposing this application for
rescission of judgment.
attach such great importance to personal service that in Fraind vs
Nothmann 1991 (3) SA 837 that it rescinded judgment against
fugitive from justice because it could not be disproved that he was
unaware that summons had been issued against him.
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
"deliberateness in the sense of knowledge of the action and its
consequences and a freely taken decision to refrain from giving
notice of intention to defend. Whatever motivation for this conduct
applicants' application for rescission of judgment Mr Shale had to
persuade me that applicants were properly served but
deliberately elected not to defend the application.
Mahlakeng attacked the Deputy Sheriff as being an exployee of the
firm of attorneys that respondents had engaged. I consider
speculative hearsay on which no court could act. When on account or
urgency rules are relaxed or dispensed with and an interim
issued the intention is not to put the absent party at a
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
service was proper - respondent elected not to be present. In Stander
vs Stander 1997 (3) SA 922 the court emphasized the need
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
(Stander vs Stander at page 923 FG). The court also said
"practitioners should bear in mind that when the return
the rule nisi is proposed, the sheriff does not react immediately to
carry out the mandate."
case the court queried the return of service and stood the matter
down. Applicant's counsel did not come back to court on
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.
(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
directly and not in an equivocal manner.
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
therefore unavoidable to rescind the default judgment as already
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