Ntsetselane v Ntsetselane and Another (CIV/APN 217 of 94) [2000] LSCA 23 (11 February 2000)

C I V / A P N / 2 1 7 / 94 IN THE H I GH C O U RT OF L E S O T HO In the matter between:- M A H L O M P HO N T S E T S E L A NE A P P L I C A NT A ND K E K E T SI N T S E T S E L A NE L E R O T H O LI T H E KO 1st 2ND R E S P O N D E NT R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r s. Justice K. J. G u ni On t he 1 1 th d ay of F e b r u a ry 2 0 00 O v er t he y e a rs a v e ry b ad practice is gradually b e i ng established in this jurisdiction. S o me legal practitioners, representing certain litigants w ho h a ve v e ry p o or or no c a s es at all a p p r o a ch these courts by w ay of ex-parte applications. B e h i nd the b a ck of r e s p o n d e n t s, t h ey obtain u n d e s e r v ed " j u d g m e n t" by w ay of R u le Nisi, u n d er the pretext that the m a t t er n e e ds u r g e nt d e t e r m i n a t i o n. O n ce s u ch an interim court o r d er h as b e en o b t a i n ed it will be routinely, t i me after t i m e, be e x t e n d ed o v er a l o ng period. In the present matter, t he rule Nisi issued in t he circumstances similar to those described a b o ve w as routinely extended for a period of approximately t wo years. As s h o wn by this applicant in her F o u n d i ng Affidavit [at paragraph 4.1] she filed an urgent ex-parte application a nd obtained a rule Nisi against respondents on 7th July 1 9 9 4; that is five years ago. In this m o st unfortunate practice of obtaining interim court orders w h i ch are routinely extended for long periods of time, s o me respondents b e c o me a c c u s t o m ed to the denials or disruption, of the e n j o y m e nt of their rights w h i c h, as in this case, are adversely affected by such court orders to such an extend that they b e c o me comfortable with the status q u o. Others just get fed up with the delays a nd give up fighting for their rights. C o u ld there be justice in such a s y s t e m? Conveniently the further extension of such rule Nisi are forgotten or left to die quietly. In those circumstances such undeserved " j u d g m e n t" b e c o me final ones. This is sad. It is an abuse of legal process a nd should not tolerated. N o w, looking at this present application, I see the persistence in the practice described above. T he applicant filed an ex-parte application in 1 9 94 a nd obtained an order behind the b a ck of respondent. T he respondent, despite several postponements of the hearing a nd final determination of the matter for almost t wo years did not tire a nd give up the legal struggle for his rights. He s e e ms to h a ve faith in the system a nd he is seeking to persuade the court to m a ke its o wn decision. E v en although the application w as finally dismissed the applicant did not accept the decision of the court. S he remained in possession of the property subject of the dispute. S he h as launched that very s a me application for the second time. S he continued to d e ny respondent his rights while she continued to enjoy those rights. This is an arrogant resort to self help u n d er the pretext that the court will decide in accordance with the applicant's wishes. T he point in limine is raised by respondent at paragraph 2 of his A n s w e r i ng Affidavit that the applicant is in c o n t e m pt of the court order w h i ch dismissed her application the first time a nd further-more she does not disclose to the court w h en she applied ex-parte the second time round, that she has already b e en informed by the chief of the village to vacate the property but she has refused. Despite her undertaking to vacate, she has remained in possession. In her Replying Affidavit, this applicant does not d e ny that she has remained in occupation of the property in question, in contempt of the court order w h i ch dismissed her application. S he only denies that, her so remaining in possession, is in c o n t e m pt of the court order dismissing her application. S he does not tell the court exactly w h en she will vacate. S he does not indicate a w i sh to purge her contempt. There is nothing in her affidavit to that effect. This is an unfortunate stance to adopt. T he litigant m u st accept a nd o b ey court orders e v en is she or he does not like them. In h er F o u n d i ng Affidavit, applicant s h o ws this court, that after she h ad obtained by an ex-parte application, an interim court order, the hearing of that application for a final determination w as p o s t p o n ed for nearly t wo years. S he d o es not e v en attempt to c o m p l a in the reasons for that u n d ue delay. S he states that the matter w as set d o wn for hearing without her k n o w l e d ge while she sat at her h o me waiting to hear, the progress m a de in the matter. S he d o es not give reasons w hy she did not go to her attorneys to enquire as days, w e e k s, m o n t hs a nd years w e nt passed. By this attitude she h as contributed to this u n d ue delay. M A D N I T S KY v R O S E N B E RG 1 9 49 (2) SA 3 9 2. S he c a n n ot totally b l a me her attorneys of record as she tries in her f o u n d i ng affidavit. H ad the matter n e e d ed urgent determination as stated in the certificate of u r g e n cy c o u p l ed w i th a v e r m e n ts to the s a me effect in the F o u n d i ng Affidavit, applicant w o u ld not h a ve g o ne h o me to await indefinitely for notification by her counsel about the progress m a de in the matter for a period well over o ne a nd half (11/2) years without c h e c k i ng e v en o n ce with her attorneys of record. S he benefited f r om the delay as she r e m a i n ed in possession of the respondents property to his prejudice. S he j u m p ed a nd w e nt to c h e ck w i th her lawyers o n ce she learned f r om the chief a b o ut the dismissal of her application. S ee paragraph 2.2 of A n s w e r i ng Affidavit]. T he p e r s on w ho set the process in m o t i on w as less interested in giving the court the opportunity to m a ke its o wn decision. T h at is an i m p r o p er use of the courts of law. A R u le Nisi is just an interim m e a s u r e. Applicant should not h a ve g o ne h o me to sit a nd forget to give the court an opportunity to hear a nd d e t e r m i ne the matter. At p a r a g r a p hs 4.2 a nd 4.3, this applicant avers that on several o c c a s i o ns the matter w as p o s t p o n ed w i t h o ut b e i ng heard. T h e se are this applicant's precise w o r d s. " A p p a r e n t ly the matter w as finally set d o wn for the 23rd F e b r u a ry 1 9 9 6. My lawyers did not i n f o rm me a b o ut the set d o wn I w a i t ed at h o me to receive notification by my counsel as to w h en the matter w o u ld be heard." T h e re are m a ny questions raised in these a v e r m e n t s. S he s o u n ds h a p py that on several occasions the matter w as p o s t p o n e d. S he gives no explanation w h a t s o e v er for s u ch p o s t p o n e m e n t s. T h e re is a sense of s o me disquiet in h er expression "apparently the matter w as finally set d o wn for the 23rd F e b r u a ry 1 9 9 6" [ My underlining]. S he g ot up a nd w e nt to enquire at her attorney's office's after h a v i ng ignored t h em for o v er o ne a nd half years b e c a u se the matter w as n ow heard. F r om the affidavit of 1st respondent, it appears the applicant w as p r o m p t ed by the notice to vacate the property by the chief after the service of the court order dismissing that first application. It is m i s c h i e v o us of the applicant n ot to m e n t i on in her affidavit in the present ex-parte application that notice to her to vacate the property, by the chief In her replying affidavit, s he m e r e ly denies m a k i ng an undertaking or p r o m i se to the chief to vacate. S he d o es not d e ny that the chief explained to her that her application h as b e en dismissed. S he applies for rescission of the default j u d g m e nt on the basis of h er default. T h is w as m o t i on proceedings. All the requisite affidavit h ad b e en filed. T he matter w as ripe for hearing a nd final determination. Applicant d o es not s h ow this court on w h at basis she should h a ve b e en present w h en the matter w as heard. S he w as legally represented. H er attorneys of record h ad instructed counsel to appear. T h is is f o u nd at paragraph 4.5 of her F o u n d i ng Affidavit. H er flimsy e x c u s es for not k n o w i n g, or bothering to k n ow w h en the matter w o u ld be heard, do not take this case a ny further. In terms of H i gh C o u rt R u l e s, L e g al N o t i ce N o .9 of 1 9 80 - R u le 1 a ny reference to a plaintiff or other litigants [including applicant] in these rules shall include his attorney w i th or without an advocate. T h at j u d g m e n t, w h i ch discharged with costs the R u le Nisi a nd dismissed the application w as not a default j u d g m e n t. It w as delivered after consideration of the issues raised in the affidavits filed of record I S S A CS A ND O T H E RS v U N I V E R S I TY OF T HE W E S T E RN C A PE 1 9 74 (2) 4 0 9. It is not proper to a p p ly to court for its recission on the g r o u nd that the applicant w as in default. T he applicant w as legally represented by counsel w ho h ad b e en instructed so to a p p e ar on her behalf by her attorneys of record. T h at j u d g m e nt w as therefore a final j u d g m e n t. T he proper procedure w o u ld be an appeal a nd not a rescission. F or this application for rescission of a default j u d g m e nt to succeed, there are certain prerequisites w h i ch m u st be satisfied in t e r ms of the H i gh C o u rt R u l es a nd c o m m on law. Section 27 (6) (a) a nd (b) H i gh C o u rt R u l e s, L e g al N o t i ce N o .9 of 1 9 80 provides, "6 (a) w h e re j u d g m e nt h as b e en granted against defendant in t e r ms of this rule or w h e re absolution f r om the instance h as b e en granted to a defendant, the defendant or plaintiff, as the case m ay b e, m ay within t w e n t y - o ne d a ys after he has k n o w l e d ge of s u ch j u d g m e nt apply to court, on notice to the other party, to set aside s u ch j u d g m e n t. [ My underlining]. (b) m u st furnish T he party so applying security to the satisfaction of the Registrar for the p a y m e nt to the other party of the costs of the default j u d g m e nt a nd of the application for recission of s u ch j u d g m e n t. [ My underlining]. This applicant did not apply within the stipulated period. T he e x c u se that the counsel n e w ly e n g a g ed w as in court the w h o le w e e k, is not satisfactory. T h e re m u st be a reasonable a nd acceptable explanation for failing to c o m p ly with the rules C H E T TY v L AW S O C I E TY T R A N S V A AL 1 9 85 (2) 7 5 5. T he rules of court are m a de for s m o o th running a nd proper operation of the courts. T h ey are m a de with the full k n o w l e d ge a nd expectation that lawyers representing litigants will be in court attending to the matters therein all the time during court hours a nd days. It cannot be an acceptable e x c u se that the litigant failed to file her papers timeously because her lawyer w as in court. H ow does that prevent the filing of papers timeously? According to this applicant, [see paragraphs 4.6, 4.7 and 4.8.] she w as upset by her lawyers w ho failed to inform her about the dismissal of her case. S he decided immediately to leave t h em and w e nt about to find another counsel for herself. S he does not say w h at she did for a w e ek or so. D id she look for another lawyer, w h e r e? W h e n? W h at w as the result? S he goes on to say she only m a n a g ed to find another lawyer on the 25th [- of what?] D u r i ng the w e ek the lawyer w as in court. So w h a t? W h e re should the lawyer b e? It w as decided in the case of S A L O O J EE A ND A N O T H ER N. N. O. V M I N I S T ER OF C O M M U N I TY D E V E L O P M E NT (2) SA 1 35 at 1 40 that " w h e re the party realises that it has not complied with the rules, it should without delay rectify the position or at lease get up and attempt to rectify timeously." This applicant does not give true a nd really reasons w h i ch prevented her from obtaining a lawyer that could do and file the necessary papers timeously. It is totally unsatisfactory and unacceptable for applicant to claim that her failure to file her present application timeously w as because she could only m a n a ge to find another lawyer on the 25th of an unspecified m o n th and year. S he has not given a satisfactory reason for her failure to find a lawyer here in M a s e ru within the required period. For the fact that after instructing an attorney w ho obtained an interim court order for her in the first application, s he w e nt h o me to sit a nd w a it w i t h o ut e v en c h e c k i ng o n ce w i th h er l a w y e rs the progress of h er case, p r o v es this applicant to be a v e ry sloth litigant w i th tendencies bothering on irresponsibility. D e s p i te there b e i ng a specific r e q u i r e m e nt that s u ch application for recission of j u d g m e nt s h o u ld be on N o t i ce to the other party, this applicant o n ce a g a in p r o c e e ds on ex-parte application. T h is is w r o ng a nd for this a p p r o a ch this application m u st fail. R u le 2 7, 6 ( b) H i gh C o u rt R u l es requires the applicant to furnish security to the satisfaction of the registrar for p a y m e nt to the other party of costs for b o th the default j u d g m e nt a nd the application for rescission. T h e re is no p r o of of p a y m e nt of s u ch security. T he counsel w ho a p p e a r ed for applicant, w h en I e n q u i r ed a b o ut this issue, he indicated that his investigations disclosed that no security for costs h ad b e en paid. T h e re is no allegation that there will be c o m p l i a n ce w i th this r e q u i r e m e nt e v en belatedly. O n ce a g a in this application on this basis alone m u st be dismissed. T h is applicant is not c o n v i n c ed that s he is m a k i ng an application for rescission of D e f a u lt j u d g m e n t. T he total disregard of all that is required of her in m a k i ng s u ch an application m e r e ly d e m o n s t r a t es her insincerity. T h is application has no merit. T he question of b o na fide defence a nd prospects of success, s h o u ld be considered together w i th the question of default. DE W I T TS A U TO B O DY R E P A I RS ( P TY L TD v F E D G EN I N S U R A N CE C O. L TD 1 9 94 (4) SA 7 05 E. W h en these t wo necessary requirements are considered jointly, the court in the exercise of its discretion is able to do justice b e t w e en the parties by balancing their interests m o re especially if the o u t c o me is to result in an unjustifiable prejudice. E v en although this application h as already failed a nd m u st be d i s m i s s ed on the a b o ve m e n t i o n e d g r o u n d s, nevertheless, I m u st still consider the last g r o u nd of b o na fide defence a nd prospects of success. Applicant is claiming that the property she occupies b e l o n gs to her as the heir of her late h u s b a n d. T he 1st respondent claims that the property b e l o n gs to h im as his inheritance f r om his late father w h om this applicant claims to be her h u s b a n d. T he question to be determined therefore is w h e t h er or not this applicant is a lawful wife of the 1st respondent's father. It is not in dispute that 1st r e s p o n d e nt father w as first married to the m o t h er of 1st respondent a nd that marriage still subsists. He w as so married to the 1st respondent's m o t h er by civil rites prior to his entering into a purportedly c u s t o m a ry marriage with this applicant. C an he validly m a r ry another w o m an while that marriage subsisted? T he a n s w er is definitely " N o ". M A K A TA v M A K A T A. W h e t h er or not he p a ys full or part "bohali" for a ny other purported subsequent marriage, that cannot, I repeat cannot constitute a valid marriage. T he marriage that is null a nd void ab initio cannot at a ny stage or time b e c o me valid unless the position of the parties changes. 1st respondent's father remains a married m an until death parted h im f r om 1st respondent's mother. This applicant cannot b e c o me his wife in death. As I h a ve said earlier on that there is no merit at all in this application, it is dismissed with costs. By behaving in this arrogant m a n n er of not paying security for costs, not purging her contempt, the applicant m u st be penalised for this despicable behaviour. S he proceeded by w ay of ex-parte application a nd did not disclose the facts of her encounter with the chief, the facts w h i ch if disclosed, the applicant could not h a ve obtained that court order. T he costs are at the attorney a nd client scale. K. J. G U NI J U D GE 11th February 2000 F or Applicant: Mr M a s i p h o le F or R e s p o n d e n t: Mr Mafantiri 12