IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/322/2010 (2)
In the matter between:
TSEKO MOKETU t/a POWER TECK Applicant
CITY LIGHTS (Pty) Ltd 1st Respondent
DEPUTY-SHERIFF (Mr ‘Mika) 2nd Respondent
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 26th day of January 2011
1. This is an application for rescission containing a prayer for stay of execution. There has already come before this court a notice of anticipation, which was argued and finalized.
2. It seems common cause that at one time there was an original sum owned by Applicant/Defendant to the Respondent/Plaintiff. But that original sum, after certain payments, came down to M259199.63 which is the amount claimed in the summons. During argument there was the added confusion which concerned the amount of M248,000.00 about “acknowledgement of debt” which, although it does appear in these proceedings, both parties seemed to disagree on how it had been arrived at. We have come to a point where certainly, as against the amount in the summons, there has been a down-payment of M30,000.00. This is common cause or indeed unarguable after showing of receipts reflecting the same, so that the Plaintiff is now claiming what is in the summons minus M30,000.00. While it may have appeared not be clear to me that this payment of M30,000.00 was made in response to the summons alone, but the probability is that it was made after the issuing of the writ of execution.
3. The important thing which was placed in issue was whether there was service of the summons or proper service. In arriving at the conclusion, we first have to look at the return of service of the Deputy-Sheriff which shows that well before the default judgement summons were served at the place of residence of the Defendant by pushing copy of the summons were the door. This was done at his premises at Ha Motloheloa which although Defendant would want to pretend otherwise, it is his place of residence. He may say he has many residences but it is one of his residences. Indeed, that authority of Herbstein and Van Winsen in Civil Practice of the Supreme Courts of South Africa 1979 edition, at page 285 says: “A copy of process may also be left at the place of residence or business of the said person”. That is why it was properly submitted by Mrs Masupha that the Applicant was properly served with a copy of the summons. He ignored the same.
4. The probability that this is the home of the Defendant is beyond doubt as shown by other attempts to contact Defendant at his residence. He did not show any other residence. It is trite law that the ipse dixit of the Deputy-Sheriff in his return is prima facie evidence unless it is disputed and seriously so where the court may be persuaded to hear viva voce evidence. I am satisfied that the service was good and proper. I am also satisfied that the default judgement was in order. I am satisfied that there was wilful default on the part of the Defendant. To show that Defendant is someone who is prone to ignore court orders, a look at page 13 of the record, will show that on 21st September, 2010 this defendant was served with the writ of execution, when the application for rescission came only on 6th November 2010. It is demonstrably clear that the Defendant can be engaged in negligence and dilatory tactics. Again, a look at the record on page 14 of documents dated 5th October 2010, and again judged against the time the application was made, demonstrates the kind of neglect the Defendant will invariably be involved in. While between this period the Defendant speaks of having made attempts to contact his lawyers and the Plaintiff’s lawyers, that in itself cannot be an excuse. It only leads to two probabilities or inferences. These are: Firstly, that the Applicant has all along been acknowledging this claim against him; and secondly, that he never all along intended to defend this claim.
5. Authorities abound in this regard; that show that all the requirements in applications for rescission of judgement, while thy have to be all considered, that they have to co-exist in some cases, they will not be of the same weight depending on circumstances. While there is a requirement that there should be a reasonable and explainable (cogent) cause for the default and that the application is made bona fide and not to delay and whether the merits do exist, the Applicant has to have a bona fide defence which prima facie has good prospects of success. Finally, whether the service was a proper one in terms of the law, no single requirement is more weighty than others. For instance, in DE Witts Auto Repairs v Fed-Gen Insurance 1994 (4) SA 705 (E) at 711 at D – H, Jones J has held:
“The correct approach is not to look at the adequacy or otherwise of failure to file in isolation. Instead, the explanation, be it good, bad, or indifferent, must be considered in the light of the nature of the defence, which is an all-important consideration, and in the light of all the facts and the circumstances of the case as a whole.”
And as again quoted from Mr Mariti’s Heads of Argument: (from the above South African case):
“an application for rescission is never simply an enquiry whether or not to penalize a party for his failure to follow the rules and procedures laid down for civil proceedings in our courts. The question is, rather, whether or not the explanation for the default and any accompanying conduct by the defaulter, be it willful or negligent or otherwise, gives rise to the probable inference that there is not bona fide defence, and hence that the application for rescission is not bona fide.”
Again in Vuyani Mabandla v Eastern Cape Corporation Ltd 1162/2004. The learned Judge said:
“It was held in this case that, the requirement that the Applicant for rescission must show the existence of a substantial defence does not mean that he or she must show a probability of success: it suffices if he or she shoes a prima facie case or the existence of an issue which is fit for trial.”
Indeed it sufficient for an applicant to set out averments which if established at trial, would entitled him to relief sought. H need not produce evidence that the probabilities favour him. See Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (0).
Indeed, the court should not decide the case simply on one of the requirements. But clearly as indicated in United Plant Hire (Pty) Ltd v Hills and Others 126 (1) SA 217 (A) at 720 (F.G).
“The factors of rescission application are not individually decisive but are interrelated and must be weighed one against the other; thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong.”
I am satisfied that most of these cases remain consistent in their interpretation. I have concluded that the Applicant’s delay was not reasonable and the explanation was not adequate.
6. Demonstrably, we have a case in which the Applicant does not have a bona fide defence. A case in which he acknowledges his debt. I believe this is a case where after issuance of summons, only M30,000.00 was paid a balance of M229,190.63 and this is a case in which demonstrably, Defendant refuses to make an offer as to what he is prepared to pay Plaintiff who cries for payment of his goods/services in vain. In the interests of justice this cannot be allowed. He has no defence at all. In his own admission he is indebted to Plaintiff. It is unfair and unjust to allow Defendant to make an appearance to defend, now after the default judgement.
This application is dismissed with costs.
T. E. Monapathi
For Applicant : Mrs Masupha
For Respondents : Mr Mariti
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