CIV/APN/292/04
IN THE HIGH COURT OF LESOTHO
In the matter between
SIBETE MOHOLA APPLICANT
And
MAMAKOANYANE MAHAMO RESPONDENT
JUDGMENT
Delivered by the Honourable Ms Acting Justice N. Majara on 12th November 2004
Applicant herein approached the court on an urgent basis for relief in the following terms:
The Rules of Court be dispensed with on account of the urgency of this matter.
A rule nisi be issued calling upon respondent to show cause why:
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The judgment obtained by default in CIV/T/648/2003 by respondent shall not be rescinded and set aside.
Execution of judgment against applicant herein shall not be stayed pending finalization thereof.
Respondents shall not pay costs of suit.
(d)Further and/or alternative relief.
Prayers 1 and 2 (b) should operate with immediate effect as an interim order. The application was opposed by respondents. On the date of hearing, Mr Matiea, counsel for applicant informed the court that whilst the main reason for their application was that applicant herein had been specifically told by the court that he would start paying compensation only after he had completed his prison sentence, they had since realized that the court's
judgment nowhere reflected this position. A copy thereof was handed in to the court.
A brief summary of the facts that gave birth to this application is that applicant herein was charged with and convicted for the murder of respondent's husband by Honourable Lehohla J (as he then was) in CRI/T/58/90. On 14th December, 1990, accused was sentenced to imprisonment for a period of 25 years.
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Subsequent to this judgment, respondent herein approached this court in CIV/T/648/2003 whereby she claimed compensation from applicant herein for the death of her husband. She was granted judgment by default since there was no appearance for applicant (defendant therein). It was on the basis of this default judgment that applicant in casu approached this court and applied for that judgment to be rescinded.
Applicant's grounds were firstly that he was not represented in the civil trial because he is still incarcerated at Maseru Central Prison where he is serving his sentence. Secondly, he was served with the summons but did not understand what they were since he is illiterate and as such could not defend himself. Thirdly, his non-appearance was not mala fides but was born by the fact that he had not understood the contents of the summons.
Applicant averred that he had prospects of success on the merits because of the following reasons:
At the time of sentencing in the criminal trial he was told by the court that he would start paying compensation after he had completed his sentence.
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At present he is still unemployed as he is still in prison and thus cannot be able to pay the compensation.
He has three children and a wife to maintain.
Respondent filed his opposing papers within which he also raised some points in limine. On the date of hearing, Mr Putsoane informed the court that both counsel had agreed that respondent will abandon his points in limine. Mr Matiea then informed the court that one of the grounds of the application was that applicant had been told by the court that he would only start paying compensation after he had finished serving his sentence, applicant had since realized upon perusing the judgment that there was no such order. Mr Matiea contended that applicant was probably told so verbally. He conceded that applicant's prayer was mainly based on this aspect and upon looking at the record they realized that there was no such order.
Mr Putsoane submitted that on the basis of this development, the defence which applicant had raised, is not supportable in law and has no evidence. He argued that for the court to grant rescission there has to be a sustainable defence warranting that the case be re-opened. He moved that the application should be dismissed with costs because applicant had blatantly lied to the court. In reaction, Mr Matiea argued that applicant had not lied but had made a mistake for which he
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should not be punished with costs especially because he is currently unemployed as he is still serving his prison sentence.
Needless to say, applicant had as good as conceded that his main ground for application had since fallen by the wayside. For this reason, the court did not waste time going into the other issues raised by both sides in their pleadings. I accordingly dismiss the application.
The only issue which this court has to determine is whether applicant should be ordered to pay costs of this application against this backdrop. Mr Matiea's contention was that applicant is presently unemployed. In her answering affidavit, respondent averred that applicant is able to pay because he receives money monthly from TEBA for injury sustained. This averment was not challenged by applicant in his replying affidavit. I therefore found no reason to disbelieve respondent.
Unfortunately, respondent did not enlighten the court on how much money applicant is getting from TEBA but this does not negate the unchallenged fact that applicant is receiving some amount of money on a monthly basis. In my opinion, if applicant's main ground for applying for rescission was not that he cannot afford to pay but that he had only been told he
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would start paying after he had completed his sentence, I am inclined to find in respondent's favour that he can also pay the costs of this application.
There is a possibility that as Mr Matiea contended, applicant had made a bona fide mistake by telling the court an order had been made that he will only start paying at the end of his prison term. However, it is important that before any litigant decides to approach the court for relief, especially on an urgent basis, asking the court to dispense with the normal rules on modes and periods of service and therefore affording him the opportunity to be heard before other and sometimes more deserving cases, he should do so because he has made sure that he has concrete grounds for taking this route.
It was therefore imperative upon applicant to have ensured that what he 'thought' was the order of court, indeed was. He did not do so. Instead, he dragged respondent to court and in so doing also wasted the court's time by approaching it for relief without first ensuring that he had sound reasons. In my opinion, this boils down to negligence on applicant's part and he ought to pay for such negligence by way of bearing the costs of this application. It is also trite law that;
'The purpose of awarding costs is to enable a successful party to recover the expenses to which he
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has been put by having been compelled either to initiate or to defend litigation." Per, M Jacobs and NEH Ehlers in Law of Attroneys'
Costs and Taxation Thereof p 1. The court however takes cognizance of the fact that upon realizing his mistake, applicant did not
stubbornly persist on the application but conceded his error and placed himself in the hands of the court. In my opinion, this factor somewhat mitigates his negligence.
For these reasons applicant is ordered to pay the costs of this application.
N. MAJARA
ACTING JUDGE
For Applicant : Mr Matiea
For Respondent : Mr Putsoane
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