IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/596/2004
In the matter between:
MAKOAE MOSHOESHOE Applicant
MAHLATSI SEEISA 1st Respondent
DEPUTY SHERIFF OF THE HIGH COURT 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
In the matter of application
for rescission and stay of execution
Delivered by the Hon. Mr. T. E. Monapathi
On the 29th Day of June 2011
1. This is a matter wherein the Applicant (judgement debtor) approached this Court by way of urgent application seeking for prayers as set out in the notice of motion for amongst others stay of execution and rescission of a default judgement.
2. This application arises out of a judgement that was handed-down by default by this court on the 18th June 2008. The First Respondent/Plaintiff (judgement creditor) had issued out summons claiming a sum of M134,030.00 as damages for assault on Respondent on the 30th October, 2004. A writ of execution was issued in due course. Applicant was dissatisfied with both the judgement and the said writ.
3. It is common cause that Applicant was duly served with the summons on the 11th February, 2005. On the 16th February, 2005. Applicant filed a Notice of Appearance to Defend the action. On the 2nd March, 2005 Applicant filed a request for further particulars, which particulars were furnished to Applicant’s Attorneys. On the 22nd September, 2005, Applicant was served with Notice to file plea but he failed to file his plea within the time stipulated in the Rules of Court. He was accordingly barred from pleading. On the 1st November,2005 Applicant applied for upliftment of the bar and the application was granted on the 2nd of November 2005 and he filed his plea on 7th November 2005.
4. Subsequently, Applicant’s counsel was served with Notice in terms of Rule 39(20) which required him to attend Pre-Trial Conference, but he failed to appear before court. As a result, on 4th April, 2006 an order was granted by this court for Pre-Trial Conference failing which the defence of Applicant would be struck-off. Applicant’s Counsel failed to comply with the above order and a final order was made striking-off Applicant’s defence.
5. As a result of this failure and or neglect by Applicant’s Counsel to comply with above order, this court granted judgement in favour of the Respondent on the 18th June 2008, to the tune of M75,390.00. Applicant submitted that he had a reasonable explanation for his default, he was not willful, he had a bona fide defence and the application is not made merely for the purpose of delay.
6. Applicant says that since the beginning of service of process on him, Applicant, while working I Butha-Buthe issued instructions to his erstwhile counsel to defend the action on his behalf. Applicant’s erstwhile counsel continued at all material times, to inform Applicant telephonically about the different stages of the action until when he would appear before court for a Pre-Trial Conference.
7. Consequent upon the judgement, of this court of 18th June 2008 as aforesaid, a writ of execution was accordingly served upon the Applicant on the 15th July 2008 and Applicant’s property was attached. It was only upon attachment of his property that Applicant approached this court with an urgent application seeking the prayers as set out in his Notice of Motion. I considered that the legal issues for determination by this court in the light in the aforementioned facts are as follows:
8. First, it is whether negligence by the Applicant’s Counsel not to defend the action in CIV/T/596/2004 to finality (despite his client’s instructions to defend) constitutes a reasonable and acceptable explanation hence be granted rescission. Secondly, whether the Applicant has bona fide defence on the merits which, prima facie carries some prospects of success. Thirdly, whether Applicant has shown good cause for defaulting and lastly and fourthly whether the Applicant must be punished for negligence or shortcomings of his Counsel.
9. The law regarding rescission applications is aptly put in HDS Construction(pty) Ltd vs Wait 1979(2) SA 298 wherein Smalburger J states:
“In Grant vs Plumbers (pty) Ltd 1949(2) SA 470(0) Brink J in dealing with a similar provision, held (at 476) that in order to show good cause an Applicant should comply with the following requirements,
(a)He must give a reasonable explanation for his default,
(b)His application must be made bona fide
(c) He must shows that he has a bona fide defence to the Plaintiff’s claim.
What is in issue is whether he has a reasonable explanation for his default…..
The absence of gross negligence in relation to the default is an essential criterion or an absolute prerequisite for the granting of the relief sought”.
Further, as stated in Melane vs Santam Insurance Co. Ltd 1962(4) S.A 531, among the relevant facts to be considered in rescission applications, are the degree of lateness, the explanation thereof , the prospects of success and the magnitude of the case. These factors, this court has to re-iterate are interrelated and are not individually decisive. See in this regard Melane case (supra).
In this regard, Respondent’s Counsel’s correctly referred the court to Jerome Ramoriting & Another vs Lesotho Bank-National Development Bank (CIV/APN/136/87 (unreported) at page 6, where the court had the following to say;
“It is not sufficient if only one of this(sic) two requirements is met, for obvious reasons a perty showing no prospects of success on the merits will fail in an application for rescission of judgement no matter how reasonable and convincing the explanation of his default. Moreover, a perty which simply disregards the court’s procedural rules with no explanation cannot be permitted to have a judgement against him rescinded merely because he had reasonable prospects of success on the merits”.
10. It is trite law therefore, these factors cannot be considered in isolation from all the others, they are inter-dependent. The court has to therefore look at the whole picture in considering the default. See De Witts Auto Body Repairs vs Fedgen Insurance co. Ltd 1994(4) S.A 705. See alsoChetty v Law Society, Transvaal 1983 (1) SA 777.
11. In Melane’s case (supra), it was held that in deciding as Applicant’s Counsel rightly points out, whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts. In essence it is a matter of fairness to both sides.
12. In De Wet and others vs Western Bank Ltd 1977 (2) S.A 1031 the court faced with a situation analogous to the instant case where the only error that could be advanced was the agents of the Applicants for rescission failed to notify them of process or notice of the application was dismissed with costs. That failure was held to be no ground for relief.
13. Counsel for the Applicant submitted that, because of the conduct of his erstwhile Counsel having entered appearance to defend in the action, he legitimately expected that his client-lawyer relationship with his former counsel would continue and that the necessary formalities and procedures relating to the case will be handled throughout the trial until judgement.
14. Applicant’s Counsel again submitted that his erstwhile Counsel never indicated to Applicant at any stage, that he would ever(for any reason) be unable to continue representing the Applicant, nor did he formally withdraw as Counsel of record in the matter. Indeed, up until the time of the application, he had not withdrawn from this matter even if informally. Indeed the rules of court oblige Counsel to file a formal notice of withdrawal which he never did. Applicant contended that his erstwhile Counsel continued to communicate telephonically with the Applicant as the latter was stationed in Butha-Buthe, about the different stages of the action until he told Applicant to await his call when he would appear before court for his Pre-Trial Conference.
15. Counsel further argued that Applicant has strong prospects of success if this rescission is granted because he says while Applicant was beating Respondent with stick the former was trying to ward off the attack on him by the Respondent. Respondent was only treated as an out-patient. Applicant was finally restrained by onlookers as he had acted out of anger.
16. This court saw no reason to disagree with Respondent’s Counsel argument that if Applicant has an apprehension that his Counsel did not execute his mandate as agreed, he should proceed against his erstwhile Counsel not by way of rescission. Rescission applications are allowed under rules of court for precisely reasons that delay which is intended to frustrate judgement should not be allowed. There is miscarriage of justice, if anything, giving the Applicant a second bite so to speak, would curry favour with proponents of the view that justice should not only be done but must manifestly be seen to be done, in exactly the same circumstances as obtaining here.
17. In Majantja F. C. vs Matlama F. C. CIV/APN/359/97 (unreported), cited by Respondent’s Counsel Ramodibedi J as he then was, had to this to say:
“I have also taken into account the fact that as earlier stated, neither the Applicant nor its Attorney made an appearance in Court again as earlier stated, was there any explanation furnished to the court regarding the non-appearance.”
In the instant case, with respect, contrary to what Applicant submitted no good explanation furnished to the court regarding the non-appearance that is the Applicant’s erstwhile Counsel had conducted himself at almost every step or procedures when he failed to comply with time limits and court orders. It can only mean that the Applicant himself was in willful default.
18. While a lay client surely, has no reason to doubt his Counsel’s undertaking that he will inform him telephonically, should the need arise, as more especially as he was in a far away place, viz, Butha-Buthe, there are limits. In drawing a demarcation line between a litigants role and that of its attorney on the latter’s negligence, the court expressed a view that it was inclined to adopt the remarks of Steyn CJ in Soloojee & Another NO v Minister of Community Development 1952 (2) SA 135 (A) at 141 B-H, where the court held that:
“there is a limit beyond which a litigant cannot escape the insufficient of the explanation tendered … considerations ad misericordiction should not id the stage is reached where it must become obvious even to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiring to his attorney in and expect to be exonerated of all blame; and if in the explanation offered to this court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked, merely because he has left the matter entirely in the hands of his attorney.”
Indeed when commenting on Majantja FC case that the Applicants explanation was both unsatisfactory and unacceptable and that the Applicant was in willful default by failing to file opposing affidavits even after being ordered to do so and failing to make an appearance in court. He held therefore that the application falls to be dismissed on that ground alone.
19. Counsel for Respondent aptly quoted Silver vs Ozen Wholesalers (Pty) Ltd 1954 (2) 345 (AD) wherein he it was said:
“where it appears that the default of appearance was due to the disregard by a director of the company of two notices of set down and the unexplained neglect of both directors to get in touch with a firm, the original firm having withdrawn from the case the court of Appeal restored the magistrate’s judgement dismissing an application for rescission.” (my emphasis).
On both the above two arguments, this court does not disagrees with Respondent’s Counsel, in the present case even though Applicant’s erstwhile Counsel never filed any notice of withdrawal even if informal.
20. This court cannot only deprecate the unfortunate conduct of Counsel who files notice to defend, engage telephonically with lay clients and then stop. Such conduct needs not only be bemoaned by this court. Respondent cannot be allowed to suffer. This case for rescission has to be dismissed.
21. Lastly, taking into consideration the whole circumstances of the instant case and even though I was urged to take into cognizence the principle of fairness and equity as well as the audi alteram partem and the authorities cited above, this court shall not grant the prayers as sought in the notice of motion.
22. The Applicant shall pay the costs of the application.
T. E. Monapathi
For Applicant : Mr. Serabele
For Respondent : Mr. Rafoneke
Noted by Adv. S. Tšabeha on 29/06/2011
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