IN THE HIGH COURT OF LESOTHO
In the matter between:
LESOTHO NATIONAL GENERAL
INSURANCE CO. LTD Applicant/Defendant
SALEMANE PHAFANE 1st Respondent/Plaintiff
THE DEPUTY SHERIFF 2nd Respondent
For Applicant - Mr Grundligh
For Respondent - Mr Ntlhoki
RULING ON A POINT-IN-LIMINE
Delivered by the Honourable Mr. Justice T. Monapathi on the 30th day of October 2003
These reasons follow my decision of the 23rd October 2003.
This application for rescission and stay of execution followed on a default judgment which was entered in the following circumstances. I state therefor substantially the facts which were said to be common cause.
Plaintiff having appointed a date in terms of Rule 39(2) the Defendant filed an application to set aside the same as an irregular step. It alleged that the irregularity arose because the First Respondent had failed to serve the notice in terms of the said Rule before obtaining a date for trial.
Secondly, First Respondent's attorneys, while aware of the application for setting aside the said notice, proceeded to have the matter heard by default and secured a judgment. Thus the judgment was obtained in the absence of the Applicant. It had not been clear nor is it material that the Applicant had not been aware of the hearing.
Suffice it to say that the Applicant contends that the circumstances or the altitude had been that the presiding judge had been said to be unavailable or so it was contended. But there was no doubt that the matter was eventually heard on the date set down by the First Respondent in the absence of the Applicants, being a party who was affected thereby. The Applicant says it did not receive notice of the date of hearing because it was not served with the notice in terms of Rule 39(2).
The point raised by the Respondent in opposition to the application for
rescission is a simple one. That the Applicant cannot strictly speaking apply
for rescission where the judgment was returned after Plaintiff had led evidence presumably in terms of Rule 41 which was the case in the instant matter.
If above were the circumstances the Respondents then submitted that the matter was one fit for appeal not rescission application when the Applicant was dissatisfied with the judgment. And I was referred in that regard to the case of Tholoana Motsoene and Two Others v Tsotang Motai and Another C of A (CIV) No 15/2002.
In addition as submitted by the Plaintiff was that the application for rescission constituted abuse of process, was misconceived and vexatious.
A case for the deficiency of Applicant's case was propelled on the factor that in terms of High Court Rule 27 default judgment means a judgment entered where there had been no entry of appearance to defend and where default was based from delivering a plea. In terms of that rule, as it was submitted, there could not have been a default judgment strictly speaking in the instant matter. In this regard Respondent submitted that the Rule 27 did not permit default judgment to be entered in a case where the defendant had
entered appearance to defend and had delivered a plea such as what the Applicant had done.
I have to remark that the difficulty in arguing points-in-limine is often accompanied by the impression that the facts which are common cause or which are arguable will not be a basis for necessary inference by the Court where conveniently, or technically they are ignored or not referred to by the side seeking to benefit from the reticence. The fact that the notice in terms of Rule 39(2) may not have been served on the Defendant is such an issue which the Respondent wished to be ignored. This cannot be allowed more especially when such facts are in the record even if they are said to be for merits. I considered that that issue of fact was arguable and could not therefore be ignored.,
I have said that as long as the facts are arguable or common cause they cannot be ignored by the Court in a matter whose remedy is of a discretionary nature or where an indulgence is sought. One of the issues is the fact that arguably there may have not been service of a notice in terms of Rule 39(2) on the Applicant. This is in no way prejudging the application seeking to strike out the notice as aforesaid.
I have concluded in my ruling that the true test is not whether a judgment is final or whether it is appealable. It is whether an applicant (for rescission or stay) has a good reason why he did not file his papers or why he failed to attend during the hearing of the matter. If the answer is in the affirmative, in the interest of justice, the judgment is rescindable.
Secondly, the true test is not whether evidence was led which led to the questionable judgment. It is whether there was an error which is comprised by the other party proceeding in the absence of the other and in particular, for example where the other party was not notified of the date of hearing. Whether a party has in fact been notified may even be arguable. For the purpose of deciding a preliminary point such as the one taken by the First Respondent, I may not however go to the extent of deciding the issue. I may not ignore that in the interest of justice. Of course the matter still remains to be resolved when dealing with the merits.
The basis for above would clearly be that it is not in the interest of justice that a judgment may be obtained against a party where notice of date and time of hearing is not given to another party. Rescission of judgment can be granted ex debito justitiae where judgment was irregular such as where a summon was not sufficiently particularized See Leballo v Leballo and
Another CIV/APN/214/92 Cullinan CJ 25th January 1993. That case exemplifies error under common law and what is I envisaged under Rule 45(l)(a) as error.
Finally and for the purpose of the point-in-limine the case of Molatoli v Matikoe High School CIV/APN/52/94 Maqutu J, 28 October 1994 persuades me that whether a judgment is said to be a final one is not a true basis of whether it is rescindable or not.
The point-in-limine fails. Costs to be costs in the cause of the decision on the merits of the application for rescission.
30TH OCTOBER, 2003