CIV/T/716/2002
IN THE HIGH COURT OF LESOTHO
In the Matter Between:
EUGENE MATAU RAHLAO APPLICANT
And
LESOTHO BANK (1999) LIMITED 1st RESPONDENT
DEPUTY SHERIFF (MOSHOESHOE) 2nd RESPONDENT
JUDGMENT
Delivered by the Honourable Ms Acting Justice N. Majara on 14th February 2005
This is an urgent application for relief in the following terms:
That a Rule Nisi do hereby issue calling upon respondents to show cause, if any, on a date to be determined by this Honourable Court, why:-
The ordinary periods of notice shall not be dispensed with due to the urgency of this application.
Stay of execution of the judgment of this Honourable Court entered by the Registrar of the High court on the 21st day of November, 2003 pending the finalization of this case shall not be made.
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The 2nd Respondent shall not be restrained from executing the judgment of this Honourable Court pending the finalization of this application.
The judgment granted by this Honourable Court on 21st November, 2003 in default of appearance hereof shall not be rescinded and/or set aside by reason that it was granted by mistake or erroneously.
The Applicant shall not be allowed to file his opposing papers against the main action within such a time as may be stipulated by this Honourable Court.
The 1st Respondent (Plaintiff in the main action), shall not be ordered and directed to file its Opposing papers, if any, within 5 days from the receipt hereof.
The applicant (Defendant in the main action), shall not be granted costs of this application.
Prayers 1 (a), (b) and (c) shall operate with immediate effect as interim interdicts pending the finalization of this application.
The Applicant shall not be granted further and/or alternative relief.
On the 13th May 2004, applicant was granted an interim order by His Lordship JTM MOILOA A.J. and the rule was made returnable on the 24th May 2004. On the return date, the rule was extended to the 7th June 2004 and was followed by a
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number of extensions until the matter was set down for hearing on the 22nd November 2004.
On the date of hearing, both Counsel for applicant, Mr Sekonyela and Counsel for Respondent, Mr Buys had filed their Heads of Argument. This court is indeed indebted to them. Before Mr Sekonyela could move the application, Mr Buys applied to the Court to have certain portions of applicant's replying affidavit struck out.
The basis of this application was that the allegation in Clause 1 thereof is argument and relies on technical matter. His reasoning was that respondent contends that Rule 27 (6) (b) provides that security has to be paid to the satisfaction of the Registrar and by implication therefore before the application is moved. He argued that applicant had only paid security on the 31st May 2004 and there was no evidence that the Registrar had approved the amount or had anything to do with its determination. Mr Buys submitted that applicant could therefore not rely on this evidence in his reply not to mention that in this application, she does not rely on the provisions of this Rule.
The second clause that Mr Buys applied to have struck out is Clause 1.3 of the same affidavit. His grounds were that the
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clause raises entirely new matter because applicant never relied on the provisions of Rule 27.
Clause 1.4 was also challenged on the grounds that it seems to support some form of an application for condonation which is not made as a substantive application and which is prejudicial to 1st respondent as the latter had not been afforded the opportunity to respond to it.
Lastly, Mr Buys contended that applicant attempted to raise a point in limine in his replying affidavit and that she is not entitled to do so as she does not bear any onus to challenge procedural aspects of the application or the opposing affidavit.
Mr Buys also raised two points in limine, to wit, that applicant approached the court in terms of Rule 45 of the High Court Rules when she should have come in terms of Rule 27 (5) because as per his contention, the basis of applicant's case that the default judgment was erroneously granted because respondent's claim in the main was not for a liquidated debt or a liquidated demand is wrong. It was on this basis that Mr Buys' submitted that 1st respondent's claim fell within the ambit of this latter provision.
Mr Buys contended further that applicant was trying to remedy her mistake by moving into Rule 27 at a late stage.
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His submission was that she has to stand or fall by her founding papers. He argued further that the provisions of Rule 27 cannot be used as an alternative by applicant paying security after she had already lodged the application in terms of Rule 45. His submission was that the security paid on the 31st May was in contravention of the provisions of this Rule.
In reaction, Mr Sekonyela argued that Clause 1.3 cannot be struck out because it was raised in the founding affidavit and not just at the replying stage. He argued further that with regard to payment of security, the important thing is for an applicant to have paid it at the time of hearing.
On the issue of condonation, it was Mr Sekonyela's contention that the foundation of applicant's case is in terms of Rule 45 where no time limit is given and that should the court find that applicant was late, the latter had applied for further and/or alternative relief hence why they resorted to Rule 27 and the court has the discretion to allow applicant to resort to this Rule.
With regard to the provisions of Rule 45 1 (a), it was Mr Sekonyela's contention that applicant's case was based on the fact that as per the provisions of Rule 27 (5) the powers of the Registrar to grant judgment by default are only limited to
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where the claim or demand is liquidated. He argued that for any other claim, the court is obliged to hear evidence.
Mr Sekonyela submitted that the claim in the summons was not liquidated but was based on agreement without proof and as a result the default judgment was erroneously granted because as per his contention on the 21st November 2003, the Registrar did not have the requisite proof.
In addition, Mr Sekonyela contended that in terms of Rule 45, applicant does not have to establish good cause or a bona fide defence hence why the court is empowered to rescind or vary a judgment mero motu under the provisions of this rule. He added that applicant has paid security under the provisions of Rule 27 (6).
I now proceed to deal with the issues raised.
With regard to the application to strike out Clause 1.3, applicant indeed approached this court in terms of Rule 45 of the High Court Rules as per her own averments in her Founding Affidavit and the submissions in her Counsel' Heads of Argument. In the said affidavit at paragraphs 11 and 14 respectively, she averred as follows:
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"I am advised by my attorneys of record and believe same to be true that the said judgment was granted by error or mistake (my underlining) as there was no evidence led which proved my indebtedness to the respondent in terms of the law since the claim is not based on a liquid claim....
...In any event, even if I did not have a bona fide defence to the claim which I submit that I do, I am advised by my counsel of record and believe the same to be true that, where the judgment of this honourable Court has been erroneously granted or granted by mistake, (my underlining) the Court can rescind the judgment even mero motu...."
In addition, in her replying affidavit at paragraph 1.2 applicant averred as follows:
"Further, I deny that this application has been brought out of time in terms of the rules. This application has been brought in terms of Rules 45 under which there is no time limit."
Rule 45 (1) (a) provides as follows:
"The court may, in addition to any other powers it may have mero motu or upon the application of any party affected, rescind or an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby."
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In the light of the above, I agree with Mr Buys' contention that applicant did not approach the court in terms of Rule 27 as far as the application for rescission is concerned and she therefore cannot be allowed to resort to its provisions at the replying stage.
In addition, as applicant herself has rightly pointed out, Rule 45 does not provide for any time limit therefore the question of condonation as raised in clause 1.4 of her replying affidavit does not arise because the court has to consider the present application in terms of the provisions of Rule 45. The application to strike out the portions in question which make reference to Rule 27 is therefore granted as prayed.
I now proceed to deal with the issues raised under Rule 45. As already shown above, it is applicant's contention that the default judgment which was granted against her in terms of the provisions of Rule 27 (7) of the High Court Rules was granted by error or mistake. Her reasons are that the respondent's claim (plaintiff in the main) was not based on a liquid claim and therefore evidence had to be led to prove the claim before the Registrar could grant the default judgment.
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Rule 27 (7) provides as follows:
"The Registrar shall enter default judgments, including judgments on confession, in undefended actions, on any working day
including vacations, in claims in convention or in reconvention where a summons is endorsed for a debt or liquidated amount (my
underlining) only excluding actions for provisional sentence."
It was respondent's case that the summons in its declaration, shows that the claim was based on moneys lent and advanced and that this constitutes a debt as per the provisions of the Rule.
The question which this court has to determine therefore is, whether the 1st respondent's claim was for a debt or a liquidated demand. In order to answer this question it is important to firstly establish what is meant by a debt, and/or a liquidated demand.
In the Concise Oxford English Dictionary at p 370 the term debt is defined as 'money or services owed or due.'
In Herbstein and Van Winsen's The Civil Practice of the Supreme Court of South Africa, when discussing the meaning of the term liquidated
demand' under a similar South African rule, it was stated at page 533 that;
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"A full Court in the Transvaal case of Fatti's Engineers Co Pty Ltd v Vendick Spares (Pty) Ltd 1962 (!) SA 736 held that in spite of the special meaning given to the words 'liquidated demand' in the former Transvaal rules of court, the expression 'debt or liquidated demand' includes a liquidated claim as known in our common law, sc a claim capable of speedy and prompt ascertainment" (my underlining)
From the above, it would appear that the provisions of the rule apply in the case where the claim in question is readily ascertainable. In other words, where money or services owed is already determined as opposed to for instance, a claim for damages where a Judge will only determine the amount through his/her award.
I may add that as a starting point, there appears to be a general consensus that as per the provisions of Rule 27 (7), claims for a 'debt or liquidated demand' are as a matter of fact, claims for the payment of a sum of money. However, this rule does not so limit such claims. It goes even beyond to include claims for ejectment, work done and materials supplied, money stolen, collection commission, etc. See Herbstein & Van Winsen (Supra) p 533. See also the case of Beringer v Beringer 1953 (!) SA 38.
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Applying the above definition in casu, respondent (plaintiff in the main) approached the court and was granted the default judgment by the Registrar in terms of Rule 27 (7) on the basis of a debt in the amount of M35, 131.45 (Thirty Five Thousand One Hundred and Thirty One Maloti and Forty Five Lisente) and interest thereon at the rate of 18.25% per annum calculated from the date of issue of summons to date of payment as stated in his declaration.
From my own understanding therefore, respondent's claim falls within the ambit of the definition and with regard to both requirements, that is, either as a debt or a liquidated demand and as such, it is incorrect to aver that the Registrar granted the default judgment
erroneously. She correctly acted within the powers bestowed on her per the provisions of Rule 27 (7).
For the above reasons, I find that the provisions of Rule 45 are inapplicable herein and I therefore dismiss this application with costs.
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N. MAJARA
ACTING JUDGE
For Applicant : Mr Sekonyela
For Respondent : Mr Buys
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