Kaleem v Hlajoane (CIV/A/20/93; C of A (CIV) No 29 of 1996) [1998] LSCA 90 (10 August 1998)

CIV/A/20/93 C of A (CIV) No 29 of 1996 IN THE LESOTHO COURT OF APPEAL In the matter between: DR S M KALEEM APPELLANT and MASESHOPHE HLAJOANE RESPONDENT HELD AT: MASERU CORAM: STEYN. P. LEON. J. A. BROWDE, A. J. A LEON, J. A. JUDGMENT The appellant was the unsuccessful applicant in the Magistrate's Court for the rescission of a default judgment. His application was dismissed with costs; he appealed unsuccessfully to the High Court but that Court granted leave to appeal to this Court. The history of this matter is as follows. On the -5th June 1991 the respondent's attorneys wrote a letter of demand to the appellant demanding Page 2 payment of the sum of M1 700 plus interest and collection costs. The sum was said to be claimed as damages caused by professional negligence on the part of the appellant. It was alleged that he had performed professional services recklessly and/or negligently causing the respondent to become pregnant and to incur further medical expenses. The last paragraph of the letter reads:- "We hope that this matter will be settled amicably without having to go to Courts of Law." In response to that letter the appellant's then attorneys wrote to the respondent's attorneys denying any negligence or recklessness, adding that any action would be strenuously defended. On the 30th September 1991 the respondent issued summons against the appellant. In the particulars of claim it was alleged that at all material times the appellant was or held himself out to be a medical practitioner or in possession of special skills to engage in that profession or occupation. It was alleged further that on or about the 27th July 1990 the appellant performed an I. U. C. D. operation on the respondent for which she paid. That operation was alleged to have been performed negligently causing the respondent to fall pregnant as a result of which she had suffered general damages in the sum of M1 700. It was further claimed that due to the pregnancy the respondent had to receive medical treatment for which she incurred expenses in the sum of M594. Page 3 Accordingly the sums of M1 700. M594, interest and costs are claimed. No appearance to defend was entered by or on behalf of the appellant. On the 14th October 1991 the respondent applied for default judgment against the appellant. Annexed to the application was an affidavit on damages which added nothing to the relevant allegations in the summons. Judgment by default was granted on the 16th or 18th or 24th October 1991 (the papers are not clear on which date) followed by a writ of execution which was issued on the 6th November 1991. The service of the writ of execution upon the appellant caused him to seek and obtain an order staying the writ pending the determination of an application by him for rescission of the default judgment. In his application for the rescission of the default judgment the appellant alleged that he had a bona fide defence and that he was not in wilful default. On both points the Magistrate, after analysing the facts and the law. held that the appellant had failed to discharge the onus, which rested upon him, of showing:- 1. that he had a bona fide defence to the action and 2. that he was not in wilful default. Page 4 The matter then went on appeal to the High Court and the learned Judge a quo, in a considered judgment, dismissed the appeal with costs. As the facts in this matter were not argued before us, it would be inappropriate for me to comment upon them save to say that I have read and re-read both judgments. In those judgments the facts and the law are analysed in detail and it appears to me that they were considered objectively and without any bias whatsoever. There can be no question at all of either of the judgments being in the slightest degree tainted by any possible dishonesty on the part of the judicial officers concerned. The learned Judge a quo granted leave to appeal to this Court on the 8th November 1995 but the appeal was only set down for hearing before this Court on the 22nd July 1998 (about two and three quarters years later). In the appellant's Heads of Argument signed by his attorney, Mr Sooknanan. the following statement appears:- Page 5 "At this stage we are inclined to believe that both the learned Magistrate and Honourable Judge have leaned in their respective judgments in favour of the Respondent not from a proper consideration of the facts before them but from a contrived contortion of the interpretation of the law in relation to those facts. We would be inclined to postulate that this could emanate from the fact that the Respondent herein is the Registrar of the High Court and was a Magistrate at the same Subordinate Court i.e in Maseru at the time of the default judgment. Both the judgments are a sorry sight of legal juggling!11 When the Court convened at the opening of the Session, on the 22nd of July 1998. the Court gave notice to Mr Sooknanan that he would be required to explain the inordinate delay in this matter and why the matter should on this ground not be struck from the roll. It was accordingly incumbent upon him that if there were issues of fact to be raised, these should be produced on affidavit, served on the other side and filed of record. Argument could, of course, be presented orally at the hearing of the matter which was set down for Monday the 27th of July. When the matter was called on this, date, the President presiding asked Mr Sooknanan to deal with three matters. The one matter was whether he had any explanation for the inordinate delay. Counsel said that he would address the Court on this issue. Page 6 The Court made it clear to him that as an experienced practitioner it was unacceptable for factual issues to be debated via statements from the bar. He then confirmed that he had not prepared any affidavit to explain the delay. When he was asked whether he had any argument to advance why the appeal should not be struck from the roll, he said that he had none. The appeal was accordingly struck from the roll. The second issue related to the question as to whether the papers in this matter should not be referred to the Attorney-General (the Director of Public Prosecutions was obviously intended) for consideration of the possible institution of criminal proceedings for contempt of Court. The third matter raised was whether, in all the circumstances, an order that costs should be paid de bonis propiis should be decreed. The second and third issues raised by this Court with Mr Sooknanan on the 27th July 1998 arose by reason of the aforesaid passage in his Heads of Argument. In response to the Court's request Mr Sooknanan filed an affidavit on the 30th July 1998. Paragraph 2 of the "affidavit reads as follows:- Page 7 "I erred in what I wrote in my Heads of Argument as a submission to the effect that the Magistrate and Judge seized with CIV/A/20/93 acted in any dishonest manner whatsoever. I apologise unreservedly." When this matter was heard again Counsel for the respondent informed the Court that he would no longer (as he had submitted in his Heads of Argument) be seeking an order for costs on the scale as between attorney and client. In view of Mr Sooknana's unreserved apology the Court indicated to him that it would not refer the matter to the Director of Public Prosecutions. There remains the question as to whether this is an appropriate case in which to award costs de bonis propiis against Mr Sooknanan. In this regard there appear to me three matters which are relevant, namely:- 1. The unexplained delay in prosecuting the appeal. 2. The nature of the attack on the Magistrate and the Court a quo in the Heads of Argument. 3. The unreserved apology by Mr Sooknanan. As to 1, this is undoubtedly a serious matter. The serious nature of this kind of activity or lack of it was stressed by the President on more than one occasion during the course of this session and I shall not add to what he said save to say that I respectfully agree with him. Page 8 As to 2, I have no doubt that the passage in the Heads of Argument referred to earlier herein is to the effect that both the Magistrate and the Court a quo acted dishonestly in order to favour the respondent. In his apology Mr Sooknanan refers to it as a submission. Whether it is a submission or an allegation makes not one jot of difference. The word "contrive" in the aforesaid passage was, in the context, used in its pejorative sense. The relevant meanings given in the Shorter Oxford Dictionary are:- "1. to invent, devise, excogitate with ingenuity and cleverness 5. to concoct, fabricate" The phrase "contrived contortion" emphasises in the context that the law was interpreted, not in a proper and objective manner, but twisted in order to favour the respondent. The relevant meaning of "contortion" given in the Shorter Oxford Dictionary is:- "1. The action of contorting; the fact of being contorted; distortion by twisting." (My underlining.) Finally I refer to the last sentence in the Heads: "Both the judgments are a sorry sight of legal juggling!" The exclamation mark was added no doubt to accentuate the attack and draw attention to it. Page 9 "Juggle" is defined appropriately as:- "4. To deceive by jugglery; to trick, cheat, beguile." Also as - "A piece of juggling, hence cheat, fraud." It is quite clear from the definitions which I have quoted read in the light of the context of the aforesaid passage including the phrase "sorry sight" that both the Magistrate and the learned Judge a quo are accused of being dishonest in the discharge of their functions and the performance of their duties in order to favour the respondent. The passage represents a scandalous attack upon two judicial officers without any justification whatsoever. If the offensive words had been written by a young, inexperienced practitioner, that would have been bad enough. What makes it worse is the fact that they were written by a senior, experienced attorney. As to 3, the fact that Mr Sooknanan has apologised and has done so unreservedly is undoubtedly an important point in his favour and he is entitled to full credit for having done that. This must be weighed in the scale. I have given anxious consideration to this factor. However, at the end of the day, after balancing the various considerations Page 10 to the best of my ability, I have come to the conclusion that, notwithstanding the apology, the gravity of the unjustified attack upon two judicial officers together with the unexplained delay lead to the conclusion that this is a proper case in which to award costs de bonis propiis. In my judgment the costs of the appeal must be paid by Mr Sooknanan de bonis propriis, R N LEON, J. A: J H STEYN,P: J B R O W D E, A. J. A: Dated the 10th day of August 1998.