CIV/APN/292/05

IN
THE HIGH COURT OF LESOTHO

In
the matter between

MARY
MALISEMELO SEFOTHO APPLICANT

And

MONAHENG
SEFOTHO RESPONDENT

JUDGMENT

Delivered
by the Honurable Madam Justice N. Majara

on
the 8^th
February 2007

By way of notice
of motion, applicant seeks the following relief from this Court:-

1. That
   divorce obtained on the 3^rd
   May 2006 be rescinded and applicant be granted leave to defend this
   action.

   
   

2. That
   divorce and ancillary prayers granted by this Court on the 3^rd
   of May be stayed pending the finalization of this matter.

   
   

3. That
   respondent be ordered to pay costs in the event of opposition.

   
   

4. 
   That applicant be
   granted such further and/or alternative relief.

   
   

The application is
opposed and respondent has raised points in
limine
in his opposing affidavit namely, applicant’s non-compliance
with Rule
27 of the High Court Rules
in the following manner as stated in paragraph 3 thereof:-

“She has
failed to say when she came to know of the default judgment granted
against her so as to enable This Honourable (sic)
to calculate the mandatory period of twenty-one (21) days. It is
clear though from her papers that she had know (sic)
of the judgment from as far back as July 2006 and only filed the
present application on the 5^th
September 2006. This almost two months late and she ought to have
applied for condonation for late filing of the application.

Applicant has
failed to comply with the provisions of rule 27(b) in that she has
failed to pay security for costs she has not even
bothered to mention
this in he (sic)
affidavit.”

In her Heads of
Argument, counsel for respondent made the submission that where an
applicant has failed to show when she came to
know of a judgment, a
substantive application for condonation for breach has to be made
before the Court in terms of the rules.
Ms
Ramafole
pointed out that per the note in the Court file, applicant was before
this Court on the 27^th
July 2006 and it was ordered that respondent should be served, the
Court having found that there was no urgency in the matter which

factor evidences that applicant was already aware of the judgment she
is seeking to have rescinded on that date.

Further, counsel
for respondent submitted that the re-filing of papers by applicant on
the 18^th
September 2006, about one and a half months later was much longer
than the stipulated 21 days since the order to serve respondent
was
made, so that an application for condonation of same would have been
in order.

She added that the
attestation on the founding affidavit is clear evidence that
applicant knew of the judgment before the 21^st
July 2006 hence why she signed the affidavit on that day and yet her
papers were only filed on the 5^th
September 2006. Ms
Ramafole
made the further submission that the rule compels an applicant to
inform the Court when she came to know of the judgment.

On the second leg
of her point, counsel for respondent pointed out that before moving
this application, applicant should have filed
security as it is a
mandatory requirement in terms of Rule
27 (6) (b) of the High Court Rules.
She prayed that this application be dismissed on these points alone.

In response to the
issue of the requirement of security, it was Mr.
Nthontho,
counsel for applicant’s submission that applicant herein falls
under the category of an indigent person for the reason that
she is a
student at the University of Botswana.
He
added that applicant has not even contributed a cent to the
proceedings and that she is also exempt from paying the Legal Aid.

With regard to
when applicant came to know of the judgment, Mr.
Nthontho
conceded that this occurred before the 21^st
July 2006 as evidenced by the urgent application they moved on the
27^th
of the same month where the Court ordered them to proceed by way of
notice to the respondent. He however stated that applicant
had to
make proper arrangements with her University to come to Lesotho. It
was his submission that there was an application before
this Court
within the period stipulated by the rules. He added that the
judgment which they are seeking to be rescinded was erroneously

granted by this Court.

Counsel for
applicant argued further that rules cannot be read in isolation and
that this their application, was made after the
lapse of a reasonable
time since judgment had been granted against them on the 3^rd
May 2006.

In reply, Ms
Ramafole
pointed out that the suggestion by counsel for applicant that the
latter is indigent does not appear anywhere in the papers and
that
this fact is not a matter of course. She submitted that applicant
should have applied to be exempted from paying security
or to be
allowed to sue in forma
pauperis.
Further, that applicant did not even apply for condonation of
non-compliance especially because the Registrar is the one who

determines the amount of security to be paid.

She added further
that reference to the Legal Aid Act by counsel for applicant was
never made in the papers especially since applicant
did not favour
respondent with a replying affidavit so that (so she submitted)
respondent’s version should be accepted per
the principle
stated in the case of Plascon
– Evans Paints v Van Riebeeck 1984 (3) SA 623.

Regarding the
issue of when this application was instituted, it was Ms
Ramafole’s
contention that nowhere in the papers does applicant state when she
came to know of the judgment so that the Court can assess for
itself
whether she was within the time stipulated by the rules. She pointed
out that the papers were drawn on the 20^th
July but were brought to Court seven days later and that even as they
were served on the respondent per the order of Court, aside
from the
Notice of Motion and the certificate of urgency nothing had changed
in the content so that applicant’s reasons for
the late filing
of this application falls by the wayside.

I now turn to deal
with the points in limine.

The requirement
for payment of security for costs where a party seeks to have the
Court set aside a judgment granted by default
is provided for by High
Court Rule 27 (6) (b)
which reads as follows:-

“The
party so applying must
furnish security to the satisfaction of the Registrar for the payment
to the other party of the costs
of the default judgment and of the application for rescission of such
judgment.”
(my underlining)

From its wording,
the above rule is mandatory on every litigant who wishes to have a
default judgment granted against him/her rescinded.
For this reason,
I can only agree with Ms
Ramafole’s
submission that if applicant herein wished to be exempted from such
payment, she ought to have applied for same. She however did
not so
in spite of the fact that this issue was raised by respondent in his
opposing affidavit. Over and above that, applicant
indeed failed to
file a replying affidavit which might have given her the opportunity
to respond to this point.

In addition, the
issue of applicant being allegedly indigent was raised for the first
time by her counsel during submissions.
Aside from the fact that I
cannot admit it for that reason, I also do not agree with the
suggestion made by Mr.
Nthontho
that the mere fact that applicant is a student at university
automatically places her in the category of indigent persons who
cannot afford legal fees and exempts her from paying security as he
stated in his heads of argument. Nor am I of the view that
this is a
fact of which this Court can take judicial notice. It therefore
ought to have been properly established before the Court
in the
papers.

Furthermore, even
assuming that the Legal Aid Act which Mr.
Nthontho
made reference to, does exempt applicant from so paying, it is my
view that this too ought to have been shown in the papers instead
of
it being raised for the first time by Counsel during argument as all
this amounted to him giving evidence from the bar which
is
procedurally unacceptable.

On the issue of
when applicant came to know of the default judgment, it is common
cause that she did so on or before the 21^st
July
2006, as evidenced by the papers she filed by way of ex
parte proceedings
on that day whereby she was ordered by my brother Nomngcongo J to
serve respondent. The papers were subsequently served
in September
2006.

The time period
which is prescribed by Rule
27 (6) (1)
within which an application of this nature must be filed is 21 days
after applicant has knowledge of such judgment and the Rule
further
requires that such an application must be made on notice to the other
party.

Once again, the
Court was informed by counsel for applicant from the bar that
applicant could not serve and file her papers on time
from the day
she was ordered to serve the other party because she is a student at
the University of Botswana and she had to go
and make arrangements to
come to Lesotho.

It is however not
clear why the same papers were not immediately served on respondent
because they had already been prepared and
as Ms
Ramafole
correctly pointed out, all that needed to be altered was the Notice
of Motion and Certificate of Urgency which did not require

applicant’s input. The rest of the papers were ready and
signed by her and nothing stopped applicant from serving them on

respondent before she left for Botswana.

At any rate, since
this point was also raised by respondent in his opposing papers,
applicant should have filed her reply where
she would have had the
opportunity to make the same averments that her counsel was
wrongfully making from the bar.

Furthermore,
although Rule
27 (6) (a)
requires an applicant to apply to Court within 21 days after he has
knowledge of the default judgment, indeed it has been stated
that it
is the duty of applicant to show when he came to know of the
judgment. Thus in the case of E.M.
Nkhetse v Santam Bank Limited & Others 1982-82 LLR 236
quoted to this Court, in dealing with the same points as raised by
respondent in
casu,
the Court per the learned Molai J. held that applicant therein should
have disclosed the date on which he came to know of the
judgment. I
respectfully agree with this position for otherwise, it would be
difficult for the Court to make a proper determination
of whether or
not applicant has indeed complied with the time period prescribed by
the rule.

On the issue of
payment of security for costs, the learned Judge also held that
non-compliance with the provisions of Rule
27 (6) (b)
rendered the papers not properly before the Court and that the Court
should decline to entertain the matter.

Coming to the
matter at hand, judging from the manner in which applicant handled
this matter, I am of the view that she was lax
in her attitude, not
to mention the fact that she had already flaunted the rules of Court
by approaching the Court without notice
to the other party in
contravention of High
Court Rule 27 (6) (b).
It would therefore not be right for this Court to allow her to use
her own negligence to her advantage.

In addition, even
assuming that at the time she approached the Court on the 27^th
July, applicant was within the time limit, respondent averred that
she had knowledge of the set-down of the divorce proceedings
during
the Easter holidays, the summons itself having been served on her
brother on the 3^rd
January 2006.

As I have already
mentioned, applicant failed to file her replying affidavit in order
to gainsay respondent’s averments.
Under these circumstances,
I cannot help but proceed on the basis of the inherent credibility of
respondent’s version in
the light of the position adopted by
Corbett JA in the case of Plascon
– Evans Paints Case (supra) at 635 A-B
wherein he quoted with approval the decision of the Court in the case
of Room-Hire
Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T)
to
wit,

“…and
the Court is satisfied as to the inherent credibility of the
applicant’s averment, it may proceed on the basis of the

correctness thereof ….”

Although the above
quotation makes reference to applicant, logically it applies in a
similar manner to respondent’s averments
if same have not been
gainsaid as is the case herein.

The case of First
National Bank of SA LTD v Van Rensburg NO and Others 1994 (1) SA 677
quoted to this Court by counsel for applicant, did lay down the rule
per Eloff JP, that if an application for rescission is made
within a
reasonable time it can be granted. However, the learned Judge was
also specific that this would be so where in such an
application, the
common law is sought to be invoked. It is therefore my opinion that
the case should be distinguished from the
present application for the
reason that applicant herein did not purport to invoke the common
law. I accordingly find that this
point was well taken by
respondent.

On the merits, it
was Mr.
Nthontho’s
contention that applicant was never served with the summons although
they were served on her brother as she stated at paragraph
5 of her
founding affidavit so that she was not in default in failing to
defend this matter. In addition, Mr.
Nthontho
submitted that there was no gross negligence on the part of
applicant.

Counsel added
further that applicant never maliciously deserted respondent per the
letter and email annexed to the file. He argued
that on the
contrary, it was respondent who ordered applicant not to come back to
their marital home. In addition, it was submitted
on behalf of
applicant that she has a bona fide defence and that the ancillary
prayers awarded to respondent have cost applicant
to have lost
everything and that as a result this application is well-founded.

In response to
these submissions, Ms.
Ramafole
pointed out that the ancillary prayers which involve custody of the
minor children and their maintenance by applicant are not absolute
or
final and can thus be challenged and/or varied at anytime so that it
is not correct to submit that they have caused applicant
any
prejudice and/or should be used as a basis to rescind a divorce
order.

On the order
regarding property, counsel for respondent argued that forfeiture
means division which is decided on the contribution
of each party to
the joint estate. She submitted that this order cannot stand in the
way of divorce so that it cannot be used
as a ground for rescission
of same.

On the issue of
service
of
the summons,
Ms Ramafole
contended that applicant did not deny that at the time of service she
was staying at her maiden home, that her brother was served
with the
papers and that she subsequently came home from the university.
Further, that this Court ordered that a copy of the
summons should be
posted to her address at the University of Botswana which is the
address that she mentions is the correct one.
She submitted that
under these circumstances, applicant was properly served and knew of
the divorce proceedings even before the
default judgment was granted
which fact she has not gainsaid.

In addition it was
counsel’s submission that the letter and email referred to by
Mr.
Nthontho
support respondent’s averments that life between him and
applicant had become intolerable and that these were authored before

the divorce.

On the issue of
the ground upon which divorce was granted, Ms.
Ramafole
submitted that the terms malicious or constructive desertion is a
question of semantics because where the one makes life intolerable

for the other, resulting in the latter leaving the matrimonial home,
the fact that in his papers respondent mentioned malicious
desertion
makes no material difference as long as he has made out a case for
divorce.

Finally Mr.
Ramafole
submitted that the ancillary prayers can be dealt with without the
divorce order being rescinded especially in the light of the
fact
that as he has averred in his opposing papers, respondent has already
re-married.

In his replying
submissions, Mr.
Nthontho
contended that the terms malicious and constructive desertion cannot
mean one and the same thing and that respondent was granted
the
divorce on the ground that applicant had maliciously deserted him
which is not the case per the annexed letter and email respectively.

He added that respondent is the one who deserted and ordered
applicant not to come to their matrimonial home whilst in Lesotho.

On service,
counsel submitted that though it was supposedly effected, it was not
done in satisfaction of the legal requirements
so that applicant
cannot be said to have been in willful default.

I now proceed to
deal with the first issue which is that of service.

At paragraph 5 of
her founding affidavit, applicant averred as follows:-

“I was
never served with the summons as I was still in school and still
am
and as such I was unaware that there were such proceedings against
me. My husband knew that I was in school as I forwarded the
key of
the house to him on the day I left for my studies in Botswana. By
then he was already living outside the matrimonial home.

Even if it can
be argued that the summons were posted, they must have been posted
through the old address which was used and accessed
by all the
students in the University while I use a post box at the school of
graduate studies, which is in use nowadays and so
summons ever
surfaced therein, the address is;-

Private Bag UB
00706

Gaborone

Botswana”

Responding to the
above averments in his opposing affidavit, respondent stated as
follows at paragraphs 6.1 and 6.2 respectively:-

“Applicant
was served with the summons through her brother one SEJAKE RAMAPAI at
her maiden home where she is presently staying and
he signed the
summons with a promise to give the summons to her this was on the 3^rd
January 2006. This Honourable Court is referred to the return of
service in the main matter i.e. CIV/T/1/2006. I aver and (sic)
advised that this was proper service.

The notice of
set-down in this matter was served upon her brother and in the
presence of the headman and surely since the said service
was
problematic as the brother refuse (sic)
the papers her brother was bound to tell her about the matter.
However applicant was in Lesotho during Easter holidays and she
met
with our children and they informed me that they had talked about the
divorce with their mother, who is the applicant.”

In addition
respondent had this to say at paragraphs 6.4 and 7.1 respectively:-

“I have
shown that the summons was not posted but wish to show that I know
Applicant’s postal address and not any old one.
The one she
has provided herein is the one which was used for service as will be
shown later in this affidavit.

…and I
aver that Applicant was served with the restitution Order through the
same address which she has mentioned in paragraph 5
and this was by
order of this Court by the Honourable Justice M. Mahase, which
provided that the Order be served at he marital
home as well as by
post to her. A copy of the receipt for postage which was to be given
to the Registrar is hereto annexed and
referred to as Annexure
“MMS1””

Respondent denied
applicant’s averments that she was never served with the
summons as shown above. He also went on to show
that per applicant’s
conversation with the children when she was home for the Easter
holidays, it was clear that she was
aware of the impending divorce
proceedings against her.

Within this given
scenario, it is my view that it was imperative for applicant to have
filed her replying affidavit to gainsay these
averments. By her
failure to do so, I can only once again proceed on the basis of the
inherent credibility of respondent’s
version per the principle
stated in the Plascon
- Evans Case (supra) quoted
above.

Further, the
annexed copy of the registered post to the University corresponds
with the same one which applicant mentions is the
correct one and
although it is not clear from the hand-writing who its recipient is
due to the fact that it has been stamped on,
I can only draw the
inference that it was received by applicant herein especially in the
light of the fact that she averred that
this is the correct address.

For the above
stated reasons, I accordingly find that service was properly effected
both through applicant’s brother and by
of a copy of the
summons having been sent by registered post to applicant’s
address.

I now turn to deal
with the issue of the ground upon which the divorce was granted.
Applicant made reference to the annexed letter
and email as proof
that she never maliciously deserted respondent and that instead he is
the one who ordered her not to come back
to the matrimonial home.

The portion to
which applicant draws this Court’s attention at page 4 of the
faxed email reads as follows:-

“I urge
you not to come and disrupt our peace when you come home to Lesotho
during the holidays until you and I have talked and agreed
on what
will eventually have to happen.”

This is preceded
by a lengthy account of respondent’s grievances which would be
impractical for me to quote intoto
herein. Suffice it to say that the whole email is basically a
detailed document listing respondent’s grievances against

applicant. However, as can be deduced from some of the portions,
respondent left the matrimonial house with the minor children
as a
result of the said complaints. For instance he states as follows at
page 3:-

“…I
told you I left the house because I was psychologically tortured by
you (sic)
perpetual accusations and demands despite (sic)
that you did not contribute anything to the welfare of the family. I
left for (sic)
under the banner of constructive desertion, to protect my life and
those of my children….

When I left
home, to gain my sanity, you immediately chased the children from
home only to spite me….

What remains a
big surprise is to see that you are determined to want to keep the
house to yourself despite that the children need
a place to stay….
I therefore do not feel safe. It is for these reasons and many
others that I told you that I will go
back to the house just so that
I can save a little money to be able to meet the needs of the
children…. I therefore will
take your belongings to your home
and expect that you will have the grace to let us live in peace….”

Turning to the
annexed letter which was written to applicant by respondent on the
30^th
April 2006, it also bears the same chronology of events that brought
about the disharmony between the two parties. It also ends
with
respondent stating that he has taken the decision to leave the
matrimonial home under the banner of constructive desertion.

Unfortunately,
applicant only annexed the above letter and email respectively
without including her replies (if any) to same so
that the Court
would have the benefit of hearing what she had to say in response to
respondent’s litany of grievances.

But be that as it
may, if the annexed two documents are anything to go by, relations
between the parties were clearly bad, resulting
in respondent’s
decision to leave the matrimonial home and telling applicant not to
come and disturb their peace when she
came for the holidays before
they talked about things.

What is correct
though is that applicant was not guilty of malicious desertion as she
was specifically told not to come home to
the respondent and the
children. Unfortunately, for the reason that applicant never
responded to the accusations, it is difficult
for me not to conclude
that respondent had good cause to have initially decided to leave the
matrimonial home and to have subsequently
told applicant to return
there until they had talked things over for the reasons that he
tabulated in the documents.

It is under these
circumstances that the next issue for determination by this Court is
whether the fact that respondent approached
this Court on the ground
of malicious desertion and not constructive desertion warrants this
Court to rescind the divorce order
as applicant is seeking.

I have already
shown that respondent detailed his grounds (which have not been
gainsaid by applicant) for having left the matrimonial
home. In my
opinion, those grounds do constitute constructive desertion on the
part of applicant so that even if divorce was granted
by this Court
under the banner of malicious desertion, it does not make any
material difference because respondent did make out
a case for
divorce.

Over and above
that, I am of the view that granting a rescission order would not be
tenable under the circumstances, more especially
because as he has
shown in his papers and this has not been denied, respondent has
already married someone else. It would therefore
be an impractical
decision to rescind the divorce order at this late hour. In
addition, as was correctly submitted on behalf of
respondent, the
ancillary prayers are neither absolute nor final which means that
applicant is not barred from approaching the
Court to revisit and
vary same on good cause shown.

For the above
reasons, I accordingly dismiss this application on the points in
limine as
well as on the merits. Costs are awarded to respondent on the
ordinary scale.

N.
MAJARA

JUDGE

For
applicant : Mr. Nthontho

For
respondent : Ms Ramafole