IN THE HIGH COURT OF LESOTHO
In the matter between
EPHARAIM LEFA LEPHOLE DEFENDANT
EDITOR - MOHLANKA NEWSPAPER
& ANR PLAINTIFF
Delivered by the Honourable Justice Mrs. Guni On the 12th day of November, 2001
This is an application for stay of execution of the warrant that has been or was going to be issued and served upon the applicants/defendants, following the obtaining of a default judgement by the plaintiff/respondent . The rule issued out
pursuant to this application operated with immediate effect as an interim court order pending the determination of the application for the rescission of that default judgement.
There are two most important requirements which the applicants in this application for the rescission of a default judgement must comply with. The applicants/defendants were called upon to enter an appearance to defend the action if they disputed the plaintiffs claim. They have failed to enter an appearance to defend the action. In order to reopen the case for the applicants/defendants, to enter their appearance to defend, they must satisfy this court why they failed to do so at the time when they were required to act accordingly.
The first requirement is that they must show the court that they were not in willful default of failing to enter an appearance to defend the said action. In the affidavits filed in support of this application for rescission of the default judgement, it is alleged that
the applicants/defendants were not in willful default. It was admitted that the summons were effectively served upon the defendants/applicants. One of the defendants is a political party. The other defendant is the Editor of the newspaper owned and published by this political party.
It would seem, according to the Chairman and Secretary-General of this political party, the chairman was their man empowered and authorised to be specifically in charge of this matter of suit against the party.
On the 5th March 1996, the said summons were served upon the person of the Secretary-General of the party. He claims that he placed the said summons on the desk of the chairman who was away on leave because of the deaths of his relatives. Nothing is said about the exact dates of deaths of the said relatives. Nothing is said about the duration of this leave of bereavement by the chairman. When did this leave of absence from office by the
chairman start? When did he return to his office? Prior to the issuing of the summons, plaintiffs attorneys wrote a letter of demand to the defendants. The chairman claims that he wrote a reply to the plaintiffs attorney's letter of demand, but he never received a response to the said letter. He does not say what sort of f reply he was expecting? Service of the summons upon them could be said to be the response to his letter. It is not entirely correct that he never received a reply. Plaintiff's attorney must have decided that chairman's reply was not a satisfactory answer to theirs. That is why the summons were issued after receiving the said reply.
The summons make a specific call upon the defendants to act in a particular manner. Defendant should have entered an appearance to defend the action. It is the failure by the defendant to enter an appearance to defend, which resulted with the obtaining of the default judgement against them.
What is the exact meaning of "willful default". Willful means intentional and deliberate, according to THE CONCISE OXFORD DICTIONARY. In the supporting affidavits to this application for rescission of the default judgement the applicants must show this court that they were not intentionally and deliberately refraining from entering an appearance to defend this action.
The Secretary-General is one of the most senior officials of the party. He is a mature person whose sense of responsibility should equal the degree of trust bestowed upon him by those who gave him that position of Secretary-General.
The Secretary-General placed the summons on the desk of the chairman, well aware that the chairman is absent. What did he expect to happen? There is a period specified in the summons, within which the defendants should have entered their appearance to defend. Did he draw the attention of the chairman to the fact
that they have been served with the summons in his absence? He does not appear to have done so. Did he enquire from the chairman if he has dealt with that case of suit for defemation against the party? The default judgment was obtained on 22nd April 1996. For a period of approximately six to seven (6-7) weeks the defendants were enjoying undisturbed slumber, while the summons remained unattended to on the desk of party chairman.
The party chairman also witholds the information regarding his attitude towards the service of the summons upon them. In his affidavits there are no averments as to whether or not he attended those matters he found waiting for his attention on his desk. He makes no mention whether or not he saw the summons. Seven weeks is a very long time for any office to be paralysed. I find it very difficult to accept that there was no one who remained holding the fort while the chairman was absent.
Litigation is a serious matter. That is why when the defendant received a letter of demand from the plaintiffs attorneys, they felt duty bound to react. The chairman replied the said letter. When the summons were served, the defendants must and should have felt more duty bound to react to the said summons. The degree of seriousness at this stage of the service of the summons upon them, has definitely been heightened than when they received a letter of demand.
For those weeks no one did anything regarding those summons. Gross inefficiency or in competency in the running of an office, to such an extent that very important work is left undone or unattended in the absence of only one of the officials, should be equated to intentional and deliberate act of neglegence The Secretary-General's inactivity and ineptitude in the face of the urgency and seriousness of the pending suit leaves a lot to be desired. It is most unfortunate that the definition or description of willful default does not include gross recklessness which seems
with greatest respect to have been the case here. Ignoring the said summons with the hope that the chairman in his own time if he so wishes, if he eventually reappeared, will deal with those summons, was in extreme, recklessness. That kind of behaviour must be visited with some sort of sensure. The witholding of material facts such as the chairman's return to the office and what he did regarding these summons on his return should also warrant some sort of punishment.
The next point for my consideration's whether or not the applicants/defendants have set out a bona fide defence in their affidavits. It is the second requirement that must be satisfied in order that the application for rescission of default judgment succeeds. The defences which the applicants/defendants have set out in their affidavits, if proved, they could be considered an answer to the plaintiffs/respondent's claim. BREITENBACH V FIAT SA (EDM) BPK. 1976 (2) SA 226.
The applicants/defendants have raised a number of defences against the plaintiff's action for damage for defemation. The first defence seems to be a denial of defemation. In addition they appear to plead the truth coupled with public interest. There is also a hint of fair comment. At this stage this court is not concerned with the availability to these defendants, of these defences. The validity of these defences will be determined at the trail. By their very nature the defences raised provides the answer, to the plaintiffs claim, if proved. For the forgoing reasons this application succeeds.
Because the default judgement resulted from an ineptitude of the defendants/applicants, they should not be allowed to get away without some kind of punishment for their bad behaviour. They should accord to the court process the respect such a process demands. The applicants/Defendants have behaved so badly that they should pay costs for this application and the default
judgement at attorney and client scale. This is so because they also withheld material facts which should have enabled the court to make properly informed decision. As it is now, a lot of assumptions had to be made regarding the finer details of their failure to enter an appearance to defend this action because the averments in their affidavits invited more questions than could be answered therefrom.
Therefore it is ordered as follows:-
Application succeeds. Applicants to file their paper in terms
of the rules from the date of this judgement.
Applicant to pay taxed costs at attorney and client before the
commencement of the trial.
For defendant - Nthethe & Co.
For plaintiff - Messrs N. Mphalane & Co.