ICI Les (Pty) Ltd v KT Goosen; KT Goosen v TCI lesotho (Proprietary) Limited (CIV/APN/205/94; CIV/T/148/94) [1994] LSCA 122 (27 July 1994)

IN THE HIGH COURT OP LESOTHO In the matters of; I. C. I. LES (PTY) LTD K. T. vs and GOOSEN K. T. GOOSEN vs T. C. I. LESOTHO (PROPRIETARY) LIMITED JUDGMENT CIV/APN/205/94 CIV/T/148/94 Applicant Respondent Plaintiff Defendant Delivered by the Honourable Mr. Justice T. Monapathi on the 27th day of July. 1994 In this Application, which was moved on an urgent basis, I made the following Interim Order in favour of Mr. Hlaoli's client, on the 26th June 1 9 9 4, (a) That the Deputy Sheriff (Mr. D. M a n d i p a k a) be joined as the 2nd Respondent. (b) That the writ of Execution in the case . number CIV/T/145/94 (the action) be stayed -2- pending the, finalization of the application. In the meantime the A p p l i c a n t / D e f e n d a n t 's goods removed on the strength of the writ (on the 27th June 1994) be refunded and be restored to the premises of the Applicant/Defendant/i (c) That the Applicant/Defendant shall file a bond in the sum of M2,000.00 to satisfy the security of costs including the Deputy Sheriff's fees. (d) That the prayer for rescission of judgment shall be dealt with in the ordinary way on the return date. (e) That the prayers (a) (b) (c) above shall operate with immediate effect, (f) That the return date be fixed for the day of the 30th June 1994 at 9.30, On the 30th June 1994 the matter was argued by Mr. Hlaoli for Applicant and Mr. Mare for D e f e n d a n t s, Judgment was to follow. I had to be satisfied that the orders had been complied with, and that the p a r t i es w o u ld b r o a ch s e t t l e m e nt of this c o m p l i c a t ed m a t t e rs as I had e n c o u r a g ed t h em to d o. T he l a t t er aspect w as m o st u n s u c c e s s f u l. -3- I h a ve m a de my r e m a r ks in o ne d e c i s i on a b o ut (air play b e i ng the b e d r o ck on w h i ch the r u l es of C o u rt o p e r a t e. I am to r e m a rk in this j u d g m e nt as what h a v oc c an be b r o u g ht a b o ut by an a t t e m pt to s t r i c t ly a d h e re to the r u l es of C o u rt e v en w h e re their logic w o u ld lead to a b s u r d i t y. E q u a l ly i m p o r t a nt w o u ld be the t i m i ng of the s t e ps to taken by a p r a c t i t i o n er and not to insist on a r i g ht of way ( f i g u r a t i v e ly s p e a k i n g) w h e re s u ch i n s i s t e n ce w o u ld r e s u lt in d e m o n s t r a b le lack of f a i r n e s s. On the 6 th A p r i l, 1 9 94 the P l a i n t i ff f i l ed his s u m m o ns in the a c t i o n, w h i ch was not a c c o m p a n i ed by a d e c l a r a t i on (see R u le 2 1 ), T he f o l l o w i ng w e re the c l a i ms c o n t a i n ed in the s u m m o n s: 1. An O r d er d e c l a r i ng t he d i s m i s s al of P l a i n t i ff by D e f e n d a nt as w r o n g f ul and u n l a w f u l; 2. P a y m e nt of the sum of M 2 7 , 0 1 5 . 00 b e i ng in r e s p e ct of s a l a r i es due to the P l a i n t i ff by D e f e n d a nt but n o t w i t h s t a n d i ng d e m a n d, D e f e n d a nt h as f a i l ed a n d / or n e g l e c t ed to pay the aforesaid sum; -4- 3. Interest at the rate of 18.25 per annum a temporal morae; 4. Costs of. suit; 5. Further and/or a l t e r n a t i ve relief. It was on the 23rd May 1994 that the P l a i n t i ff was served w i th a n o t i ce of appearance to d e f e n d. Before then (On the 31st May 1 9 9 4) the Defendant had b e en served with a P l a i n t i f f 's d e c l a r a t i on and this was a c c o m p a n i ed by an a p p l i c a t i on for summary j u d g m e nt (see Rule 2 8 ). It was on the 2nd June 1994 that the P l a i n t i ff was served w i th a r e q u e st for further p a r t i c u l a r s. On the 13th June 1994 the P l a i n t i ff was served with a Notice in terms of R u le 30(1) in w h i ch the defendant h e r e in hereby m a k es a p p l i c a t i on to the above H o n o u r a b le Court for the setting a s i de with costs the plaintiff's a p p l i c a t i on for s u m m a ry judgment. On the basis t h a t: " it is i m p r o p er p r o c e e d i n gs in as much as the defendant has properly filed n o t i ce of a p p e a r a n ce to defend and Requested further p a r t i c u l a rs to e n a b le it to plead." It is important to show how the r u le 3 0 ( 1 ) ( i) c o u c h e d. It is as f o l l o w s: -5- " 3 0 ( i) w h e re a p a r ty to any c a u se has taken an i r r e g u l ar or i m p r o p er p r o c e e d i ng or i m p r o p er step any other p a r ty to s u ch c a u se may w i t h in f o u r t e en days of taking of such step or p r o c e e d i ng a p p ly to Court to have it set a s i d e. P r o v i d ed that no p a r ty who has taken any further step in the cause w i th k n o w l e d ge of the i r r e g u l a r i ty or i m p r o p r i e ty shall be entitled to make s u ch a p p l i c a t i o n ." It is to be noted that the s u m m a ry j u d g m e nt was to be h e a rd on the 1 3 th J u ne 1994 at 9.30 a.m. It was o n ly on that day at 9.15 a.m. that the said d e f e n d a n t 's n o t i ce in t e r ms of Rule 3 0 ( 1) w as served on the o f f i c es of the P l a i n t i f f 's A t t o r n e y s. A p p a r e n t ly the A t t o r n ey m o v i ng the a p p l i c a t i on for summary could n ot have b e en a w a re that the s e r v i ce of the n o t i ce had been m a d e. On the 1 3 th June 1 9 94 the m a t t er h a v i ng b e en e n r o l l e d, the m a t t er w as p o s t p o n ed to the f o l l o w i ng M o n d ay the 20th J u n e, 1 9 94 by my b r o t h er M o l ai J. As the P l a i n t i f f 's A t t o r n ey told this Court it w as for the r e a s on that the learned judge ordered the P l a i n t i ff to f i r st file s e c u r i ty for costs ( b e i ng a p e r i g r i n u s) as r e q u e s t ed by the d e f e n d a nt on 23rd May 1 9 9 4. It s h o u ld not e s c a pe n o t i ce that the p l a i n t i f f 's d e c l a r a t i on c o n t a i n ed a p a r a g r a ph 6 and p r a y e rs as f o l l o w s: -6- -6- P l a i n t i ff h as s u f f e r ed d a m a g es in t he sum of M 2 7 . 0 1 5 . 00 b e i ng in r e s p e ct of s a l a r i es due to p l a i n t i ff by d e f e n d a nt in l i eu of n o t i c e. W h e r e f o re p l a i n t i ff p r a ys f or j u d g m e nt a g a i n st d e f e n d a nt for: 1. payment of the sum of (M27,015.00. . 2. Interest at the rate of 1 8 . 2 5 %. 3. Costs of suit, 4. Further and/or a l t e r n a t i ve relief." It is important to note the following t h i n g s: (a) The prayers in the d e c l a r a t i on differed with those in the summons in that the prayer (1) in the summons had been removed. That prayer had been for a d e c l a r a t i o n, I had not been sure that this can be done without having applied for amendment first, This I thought was m o re so because the -7- matter was clearly defended and was being o p p o s e d. But there is now no doubt that a summary judgment may be applied for in respect of claims set out in rule 28 even though the summons contained other claims (see E v e l yn Haddon & C o. Ltd v L e o j a n ko (PtY) Ltd 1967 (1) SA 6 6 2 ( 0 ). (b) W i t h o ut evidence h a v i ng been led it was not clear how was the sum of M27,O15 has been arrived at. This is m o re i n t e r e s t i ng when one notes that it was in February 1994 when plaintiff's services were terminated. But such evidence is not n e c e s s a r i ly r e q u i r ed in terms of Rule 2 7 ( 5 ). May be all this can be easily e x p l a i n ed when regard is had to the letter of appointment which w as annexed to the p a p e r s. The letter contained terms and c o n d i t i o ns w h i ch include m o n t h ly salary. But then there would p r o b a b ly be a d i s p u te as to how and why plaintiff was terminated or dismissed. But, all the same, p l a i n t i ff proceeded, and appeared before my brother M o l ai J when summary judgment was granted in terms of the prayers set out in the d e c l a r a t i on to the summons. The plaintiff informed the learned judge that there was no i n t e n t i on to oppose the summary j u d g m e n t. How correct was this? It is on the s t r e n g th of this judgment that the p l a i n t i ff proceeded to levy e x e c u t i on of the d e f e n d a n t 's p r o p e r ty w h i ch called for this a p p l i c a n t 's r e s p o n se by way of this a p p l i c a t i o n. In terms of Rule 2 8 ( 3) the only way a d e f e n d a nt should o p p o se an a p p l i c a t i on for default j u d g m e nt is by doing one of the f o l l o w i n g; -8- (a) give security to the p l a i n t i ff to the s a t i s f a c t i on of the R e g i s t r ar for any j u d g m e nt including such costs w h i ch may be g i v en or (b) S a t i s fy the C o u rt by a f f i d a v it or w i th leave of the Court, by oral e v i d e n ce of h i m s e lf or of any other p e r s on w ho can swear p o s i t i v e ly to the fact that he has a bona fide d e f e n c e. R e s p o n d e nt has submitted that the a p p l i c a t i on should fail on the following g r o u n d s: That the A p p l i c a nt has failed to r e s p o nd p r o p e r ly to the a p p l i c a t i on for summary j u d g m e nt and s e c o n d ly that a s u m m a ry judgment cannot be removed by way of r e s c i s s i on but by a j u d g m e nt on appeal ( i n v a l i d a t i ng the s a m e ). Let us i n v e s t i g a te the two g r o u n d s. Having m a de a broad o v e r v i ew of each step taken by the r e s p e c t i ve p a r t i es it o p p o r t u ne now to seek to arrive at a -9- s o l u t i on to the problem by p e r f o r m i ng a b a l a n c i ng act.. T h is c an be i n t r o d u c ed by asking the f o l l o w i ng q u e s t i o n s: Having b e en s e r v ed w i th a. n o t i ce of i n t e n t i on to defend was the p l a i n t i ff e n t i t l ed to file a d e c l a r a t i o n? Y es he was entitled to do s o. H a v i ng b e en served with a n o t i ce of i n t e n t i on to defend was t he p l a i n t i ff e n t i t l ed to file an a p p l i c a t i on for summary j u d g m e n t? T he a n s w er should be in the a f f i r m a t i v e. Having filed a d e c l a r a t i on w as the p l a i n t i ff e n t i t l ed to file an a p p l i c a t i on for s u m m a ry j u d g m e n t. The a n s w er is in the n e g a t i ve (see E s so S t a n d a rd SA ( P t y) Ltd vs V i r g i n ia O i ls & C h e m i c al Go. (Pty) Ltd 1 9 72 (2) SA 8 1 ( o )) It is b e c a u se the a p p l i c a t i on can be f o u n d ed on a s i m p le s u m m o n s. T h is is similar to a s i t u a t i on w h e re p l a i n t i ff e l e c ts to f u r n i sh f u r t h er p a r t i c u l a rs of his c l a im after f i l i ng an a p p l i c a t i on for s u m m a ry j u d g m e nt (see J a c o bs vs FPJ F i n a ns ( E d m s) BPK 1975 ( 3) SA 345 ( 0 ) ). He forfeits his r i g ht to p r o c e ed on the s u m m a ry j u d g m e n t. S a v i ng b e en served w i th a n o t i ce in t e r ms of Rule 30 (1) on the 13th J u ne was the p l a i n t i ff e n t i t l ed to proceed and such to o b t a in j u d g m e nt on the 2 0 th J u ne 1994? He should not h a ve i g n o r ed the n o t i c e. It was of i n t e r e st to find out as to why the d e f e n d a nt c h o se to ignore the s u m m a ry j u d g m e nt but p r o c e e d ed to r e q u e st for f u r t h er p a r t i c u l a rs and then w a i t ed to file a n o t i ce in terms of R u le 3 0 ( 1) on the d ay on w h i ch the a p p l i c a t i on for d e f a u lt j u d g m e nt was e n r o l l e d. It is also i n t e r e s t i ng to n o te -10- that the d e f e n d a n t 's n o t i ce d o es not a p p o i nt a d a te and t i me on w h i ch the a p p l i c a t i on w o u ld be m a d e. T h is s e e ms to be i m p l i ed in the w o r ds " w i t h in f o u r t e en d a y s" and " a p p ly to c o u r t ." T h e re are m a ny i n t e r p r e t a t i o ns to the word " a p p l y" but the m o st a p p r o p r i a te in the c i r c u m s t a n c es w o u ld seem to be in the c o n t e xt of " m a ke an a p p l i c a t i on by w ay of a r e q u e s t, a m o t i on to a c o u rt or j u d ge ( s ee M o b bs Ltd vs S e r g e a nt Ltd 1 9 36 EDL 3 6 7 ). B ut a g a i n, in t h is r e g a r d, o ne w o u ld h a ve to c o m p a re the a b o ve i n t e r p r e t a t i on w i th the s p e c i f ic way in w h i ch Rule 2 9 ( 4) (on e x c e p t i o n s) is f r a m e d: "An e x c e p t i on on any g r o u n ds may be set d o wn for h e a r i ng on a d a te a l l o t t ed by the R e g i s t r ar or n o t i ce g i v en to b o th p a r t i e s ." A g a in the l a t t er r u le may imply that t h e re w o u ld be no r e q u i r e m e nt that the R e g i s t r ar shall be a s k ed to fix a d a te in the n o t i ce in t e r ms of R u le 3 0 ( 1) but the p a r ty w ho a p p l i es s h a ll h i m s e lf a p p o i nt s u ch a d a te in the n o t i c e, as in a n o t i ce of m o t i o n. In T h e u n i s s en vs P a y ne 1 9 46 TPD 680 the w o r ds " a p p l i c a t i on s h a ll be m a de w i t h in f o u r t e en d a y s" in S e c t i on 7 of o r d i n a n ce N o4 of 1 9 27 (T) w as i n t e r p r e t ed to m e an that t he a p p l i c a t i on s h a ll be set d o wn on the roll w i t h in a period of f o u r t e en d a ys and not m e r e ly that n o t i ce of t he a p p l i c a t i on s h a ll be g i v en w i t h in that t i m e. I h a ve not t h o u g ht of the d i s t i n c t i on or s i g n i f i c a n ce of t he u se of t he w o rd " m a y" u s ed in the R u le 30 (1) as a g a i n st the c l e a r ly i m p e r a t i ve " s h a l l" u s ed in the a b o ve o r d i n a n ce in T h e u n i s s en vs P a y ne c a se ( a b o ve c i t e d ). A n o t h er c a se w h i ch w o u ld be i n s t r u c t i ve in this r e g a rd is U i t e n h a ge M u n i c i p a l i ty vs Uys 1 9 7 4 ( 3) SA 800 ( E ). -11- T h e re is another aspect to the d e f e n d a n t 's notice in terms of Rule 3 0 ( 1) to which I m u st a d v e r t. It is this aspect as to whether it was a good s t e p. T h is is so when tested against the p r o v i so to the said Rule 3 0 ( 1 ). T he p r o v i so r e a d s: "Provided that no party w ho has taken further steps in the c a u se with the k n o w l e d ge of the i r r e g u l a r i ty or in- p r o p r i e ty shall be e n t i t l ed to make such a p p l i c a t i o n ." Isn't it the defendant who on the 2nd J u n e, 1994 served the p l a i n t i ff w i th at request for f u r t h er p a r t i c u l a r s? I would hold that the defendant d i s e n t i t l ed itself from attaching the a p p l i c a t i on for default j u d g m e nt by reason of filing a r e q u e st for further p a r t i c u l a rs as he has done (after service on of the a p p l i c a t i on for summary j u d g m e n t ). I would hold further that t he d e f e n d a n t 's attempt to i m p e a ch the a p p l i c a t i on for s u m m a ry judgment on the ground that a r e q u e st for d e f a u lt judgment had b e en requested was a self created p r e j u d i ce or p r e d i c a m e n t. I h a ve no h e s i t a t i on in d e c i d i ng that the D e f e n d a nt was a d o p t i ng a wrong p r o c e d u re or step in the c i r c u m s t a n c e s. P l a i n t i ff ignored the a p p l i c a t i on under Rule 3 0 ( 1 ). A p l a i n t i f f 's proper cause w h e re any p r o c e e d i ng in a cause is -12- irregular is not to proceed as if there is no such process at all but to apply to Court under this rule for an order setting it aside (see Schwee vs Schwee 1909 TN 1 4 9 ). He was not entitled to go on and obtain a s u m m a ry judgment as if nothing had happened. I now come to the r e s p o n d e n t 's ( p l a i n t i f f ' s) second argument. It is that one a b o ut that a summary judgment cannot be rescinded and can only be removed by way of appeal. T h is means according to the a r g u m e nt that the provisions of Rule 2 7 ( 6) and Rule 45 are not a p p l i c a b le to judgments obtained by way of a p p l i c a t i on for summary j u d g m e n t. These rules concern v a r i a t i on and r e s c i s s i on of j u d g m e n t s, The respondent's counsel sought support for his argument from the cases of Slabbert vs Volskas Ltd 1985 (T) and Verrijct vs Horegded T r a c t o rs and Implements (Pty) Ltd 1981 (1) SA 787 (T) and Arend and Another vs Astra Furnishers (Pty) Ltd 1 9 7 3 ( 1) 8 4 9, I am unable to accept that these cases assist the R e s p o n d e nt in his a r g u m e n t. I have not therefore been persuaded that the operation of Rule 45 (1) and 45(4) may be excluded by r e a s on that a summary judgment can only be removed by way of an a p p e a l. I have to exercise my d i s c r e t i on in this a p p l i c a t i on which is fraught w i th errors c r o s s - c r o s s i ng every angle and steps taken by the p a r t i es herein. I h a ve earlier commented on, the cause of these problems. I have to make the following order by way of allowing the application and conducing to the justice of the matter. -13- (a) The plaintiff's summons and declaration shall be allowed to stand as if the prayer One (1) "An order declaring the dismissal of the plaintiff by defendant as wrongful and unlawful." is still existing and inserted in the summons and declaration, Plaintiff my elect to abandon the prayer. (b) The defendant's notice of entry of appearance to defend shall be allowed to stand, (c) The defendant's request for further particulars to p l a i n t i f f 's summon is removed and set aside. (d) The defendant's n o t i ce in terms of Rule 30(1) is removed and set aside. (e) Plaintiff's a p p l i c a t i on for summary judgment is removed and set a s i d e. This include the w r it of e x e c u t i o n. -14- (f) T he defendant s h a ll plead and if he so d e s i r es except and f i le any o b j e c t i on within s e v en days. In the e v e nt that the D e f e n d a nt e x c e p ts he shall p l e ad o v e r. (g) T he A p p l i c a n t / D e f e n d a nt shall pay costs of the a p p l i c a t i on i n c l u d i ng court's and Deputy S h e r i f f 's fees. (h) T he Order for r e t u rn of t h e. a t t a c h ed and r e m o v ed goods of d e f e n d a nt is c o n f i r m e d. 7. MONAPATHI JUDGE 27th July, 1994