Nena v Mothepu (CIV/APN 169 of 88) [1990] LSCA 31 (2 February 1990)

C I V / A P N / 1 6 9 / 88 IN T HE H I GH C O U RT OF LESOTHO In t he m a t t er b e t w e e n :- ' M A M A T E LA 'NENA A p p l i c a nt and 'MALEBOHANG MOTHEPU Respondent J U D G M E NT Delivered by t he H o n o u r a b le M r. J u s t i ce J. L. Kheola on t he 2nd day of February, 1990 This is an application f or t he condonation of t he applicant's late f i l i ng of appeal from t he Leribe M a g i s t r a t e 's Court to this C o u r t. T he application is being strongly opposed by t he respondent on t he ground t h at t he application f or r e s c i- ssion of t he d e f a u lt judgment granted on t he 25th S e p t e m b e r, 1987 w as h o p e l e s s ly o ut of t i m e, and w as properly dismissed by t he m a g i s t r a t e. The f a c ts of t h is c a se a re common cause and a re as f o l l o w s :- / . . . .2 - 2- On the 15th April, 1987 the respondent issued a summons against the applicant in which she claimed damages for defamation and an amount of M104 which disappeared while the applicant was assaulting the respondent. On the 12th June, 1987 the applicant filed her plea after she was served with a Notice to file Plea dated the 4th June, 1987. On the 11th August, 1987 the applicant's attorneys, Messrs. Mohaleroe, Sello & C o ., were served with a Notice of Set-Down for the hearing of the matter on the 4th September, 1987. It is not clear from the record why the matter did not proceed on that day. On the 9th September, 1987 another Notice of Set-Down was posted to the applicant's attorneys per registered post and the number of the registration slip is 48107. The matter was set-down for the 25th September, 1987. the Notice of Set- Down was received by the applicant's attorneys on the 8th October, 1987 i.e. almost two weeks after the date of hearing. On the 25th September, 1987 the matter was heard and a default judgment was granted for the respondent in the amount of M1,200-00. /....3 -3- On the 8th October, 1987 the applicant's attorneys informed her that a default judgment had been granted against her. In paragraph 2 of her founding affidavit in the applica- tion for rescission of the default judgment and stay of execu- tion, the applicant said: "The respondent/plaintiff obtained default judge- ment in the above matter on the 29th (sic) September, 1987 and I only became aware of this on the 8th October, 1987 this being the day my attorney of record received the Notice of Set-Down sent by post." (My underlining) I must point out that because this was a case in which damages were claimed the court a quo heard oral evidence by the respondent in which she indicated on the 5th February, 1987 when the applicant defamed and assaulted her she (respondent) was in the company of one Tloka Koloko. On the 27th February, 1987 when the applicant defamed her again she was in the company of one Hlomelang Manama. On the 17th March, 1988 the application for rescission of judgment was dismissed with costs. No reasons for judgment were given but it is probable that the court a quo was of the opinion that the application was out of time. I say it is probable because just before dismissing the application the court asked the applicant's attorney this question: "Mr. Matlhare, what do you say about the time limit." /....4 - 4- It is trite law t h at in an application f or the r e s c i- ssion of a d e f a u lt judgment the a p p l i c a nt m u st show t h at his f a i l u re to a p p e ar was not wilful and t h at he has a bona f i de d e f e n c e. It is very c l e ar from t he a p p l i c a n t 's affidavit t h at h er failure to a p p e ar w as not w i l f u l. The n o t i ce of set-down w as received long a f t er the c a se w as h e a r d. She cannot be blamed f or the n e g l i g e n ce of h er attorneys w ho obviously failed to c o l l e ct t h e ir mail from the post o f f i ce timeously and r e g u l a r l y. The crucial point w as w h e t h er she showed t h at she had a bona f i de defence to the claim. In h er a f f i d a v it she merely says that the respondent has no witnesses to s u p p o rt h er allegations and t h at h er a l l e g a t i o ns are a f t e r t h o u g ht b e c a u se at the m e e t i ng they held at the c h i e f 's place immediately a f t er the alleged d e f a m a t i on and a s s a u lt no such allegations w e re m a d e. In my view t h e re w as no need f or t he respondent to call supporting e v i d e n ce w h en she applied f or a d e f a u lt j u d g m e n t. H er e v i d e n ce was enough to prove her claim. H o w e v er she told the Court the n a m es of people w ho w e re present on t he two o c c a s i o n s. It is p r o b a b le t h at if t he m a t t er w e nt to full trial she w o u ld h a ve called them. ' It w as alleged t h at h er d e f e n ce w as a b a re d e n i a l. I tend to a g r ee w i th t h at submission b e c a u se in h er plea t he a p p l i c a nt admits t h at there w as " c o n f r o n t a t i o n" b e t w e en h e r s e lf and the respondent. i /....5 - 5- She says t h at t he "confrontation" w as on t he 4th February and not on t he 5th February as alleged by t he r e s p o n d e n t. To c o n f r o nt a person is to m e et or stand facing him, especially in hostility or d e f i a n c e. T he a p p l i c a nt failed to show in detail t he n a t u re of t he c o n f r o n t a t i o n. It w as h er duty to e x p l a in to t he c o u rt w h e t h er during t h at c o n f r o n t a t i on any w o r ds w e re uttered and t h at would have,enabled t he court to d e c i de w h e t h er or n ot s he h as a b o na f i de d e f e n c e. I am of t he o p i n i on t h at she failed to show t h at she had a bona fide d e f e n ce and on t h at ground a l o ne t he c o u rt below w as entitled to d i s m i ss h er a p p l i c a t i o n. A f t er t he dismissal of t he a p p l i c a t i on on t he 17th M a r c h, 1988 t he applicant did not file h er appeal within thirty days in t e r ms of O r d er XXIX Rule 2 (1) of t he S u b o r d i- n a te C o u rt Rules - High C o m m i s s i o n e r 's N o t i ce 111 of 1 9 4 3. It was only on the 23rd M a y, 1988 t h at she launched t he present a p p l i- c a t i o n. No court can allow litigants to break its rules with impunity and on w h at appears to be regular b a s i s. The a p p l i c a nt b e c a me aware of t he d e f a u lt j u d g m e nt on t he 8th O c t o b e r, 1987 (according to h er own a d m i s s i on shown a b o v e) but did nothing until t he 3rd D e c e m b e r, 1987 when s he applied f or r e s c i s s i o n. S he was obviously o ut of t i m e. /... .6 - 6- A g a in w h en h er a p p l i c a t i on w as d i s m i s s ed on t he 17th M a r c h, 1988 she did nothing until t he 17th M a y, 1988 w h en she w as served with a w r it of e x e c u t i o n. She blames her a t t o r n e y, M r. M a t l h a r e, f or f a i l i ng to tell h er of t he r e s u lt of t he application. In t he c a se of S a l o o j ee & a n o t h er N . N . O. v. M i n i s t er of Communaty D e v e l o p m e n t, 1965 (2) S. A. 135 (A. D.) at p. 141 S t e y n, C. J. said; ' "It h as n ot at any t i me b e en held that c o n d o n a t i on will not in any c i r c u m s t a n c es be withheld if t he blame lies with t he a t t o r n e y. T h e re is a limit beyond w h i ch a litigant c a n n ot e s c a pe t he results of his a t t o r n e y 's lack of d i l i g e n ce or t he i n s u f f i- ciency of t he e x p l a n a t i on tendered . . . . C o n s i d e r a- t i o ns ad m i s e r i c o r d i am should not be allowed to b e c o me an invitation to laxity is reached w h e re it m u st b e c o me o b v i o us a l so to a layman t h at t h e re is a protracted d e l a y, he c a n n ot sit passively by w i t h o ut so much as d i r e c t i ng any r e m i n d er or inquiry to his a t t o r n e y . . .. 'and e x p e ct to be exonerated of all b l a m e; and i f . .. t he e x p l a n a t i on offered to this c o u rt is patently insufficient, he c a n n ot be heard to c l a im that the If m a t t er e n t i r e ly in t he h a n ds of h is a t t o r n e y. he relies upon t he ineptitude or remissness of his own a t t o r n e y, he should at least explain that none of it is to be imputed to h i m s e l f ." If....the stage The a p p l i c a nt in t he p r s e nt c a se m u st h a ve noticed at a very early stage t h at h er attorney was grossly n e g l i g e n t. He w as all the time not telling h er w h at w as g o i ng on and t he a p p l i c a nt w as well a w a re of h is lack of d i l i g e n c e. I think t h is is a p r o p er c a se w h e re a litigant has to suffer t he c o n s e q u e n c es of h i s / h er a t t o r n e y 's n e g l i g e n c e. M r. M a t l h a re h as given no e x p l a n a t i on why t he appeal w as n ot filed t i m e o u s l y. T he A...7 -7- r e s p o n d e nt c a n n ot be telling t he truth t h at she w as not in c o u rt . when the application f or rescission w as heard. In h er Notice of a p p l i c a t i on t he m a t t er was set down f or hearing on the 15th J a n u a r y, 1988. It w as postponed to t he 17th M a r c h, 1988. She showed no interest in the m a t t er if she did not go to court on the 15th January and on the 17th M a r c h, 1988.. She behaved in a very irresponsible manner amounting to gross negligence on h er p a r t. The a p p l i c a nt does not seem to h a ve been honest with t h is C o u r t. I h a ve indicated above that in h er affidavit in support of h er application f or rescission she deposed in no uncertain terms that she became aware of t he default judgment on the 8th October, 1987. In h er present affidavit in support of the c o n d o n a t i on proceedings she n ow s a y s, in paragraph 1 0, that on or about the 2nd D e c e m b e r, 1987 she was1 informed by her then a t t o r n e y s' f or the f i r st t i me t h at j u d g m e nt had been obtained against h er by d e f a u l t. She immediately instructed him to apply f or rescission. M r. N a t h a n e, counsel f or the a p p l i c a n t, tried very hard to e x p l a in to the C o u rt that the a p p l i c a nt did not m e an to say that she became a w a re of the d e f a u lt judgment on t he 8 th O c t o b e r, 1987. The words used by the applicant are simple and straightforward and c a n n ot m e an any o t h er t h i n g. -8- T he a p p l i c a nt should n ot be allowed to c h a n ge h er s t a t e m e nt of f a c ts w h e n e v er she c h a n g es her a t t o r n e v s. In the result the application is dismissed. J. L. K H E O LA J U D GE 2nd F e b r u a r y, 1990. For the Applicant - Mr. Nathane For the Respondent - Mr. Ramodibeli.