IN THE HIGH COURT OF LESOTHO
In the matter between:
WOOL WAGON LESOTHO (Pty) LTD. PLAINTIFF
REITUMETSE MOTAKE DEFENDANT
DELIVERED BY THE HONOURABLE MRS JUSTICE KJ. GUNI ON THE 25th AUGUST, 2005.
Powers of High Court
The objective of setting aside the default judgment?
When the case is reopened, parties must be given a fair and proper hearing of their cases.
The party should not be penalized where it is established that a genuine error occurred.
HIGH COURT RULES -33 and 53
The High Court has discretionary powers bestowed upon it by these Rules, to condon any non-compliance with the HIGH COURT RULES in appropriate cases.
In this matter, the summons were issued out of this court, by the plaintiff on the 7th November, 2001. The plaintiff is suing the defendant for the payment of the sum of M38,102.69 plus interest at the rate of 18.5% per annum from the date of the issue of this summons plus costs of suit.
In the declaration, at paragraph 4 it is alleged that in terms of the sale agreement between the parties the plaintiff sold goods to the defendant for an amount of M13,220.92. This purchase price was to be paid no later than 30th September, 1994 together with interest at the rate of 18.5% per annum. At the date of the issue of the summons i.e. the 7th November 2001, that debt had grown to the tune of M38,102.69 and still growing at the rate of 18.5% until the date of payment. Presently it has approximately trebled. In law, is there a stage when the growth of the debt should stop? IMF and the World Bank are accused of impoverishing the poorest of their poor borrowers by charging interest rates that make it impossible to ever finish paying their debts. This plaintiff to me is behaving like those institutions.
2, DEFENDANT'S PLEA
Defendant's plea is a total denial of indebtedness to the plaintiff as described in paragraphs 4,5 and 6 of the declaration. While admitting that there was an agreement between the parties, for the supply of goods by plaintiff to the defendant, it was a further terms of the said agreement that the defendant was to return the unsold goods to the plaintiff.
This rider caused such confusion and added such complications to this simply matter, which as a result, there emerged such a wrangling that went on from 1994 up to the present date. The culmination of such unnecessary wrangling is an application by the plaintiff to have the defendants defence struck out -exposing the defendant to be liable to pay to plaintiff an amount of M38,102.69 plus interest.
This amount as appears from the plaintiff's own papers is grossly unjustified if and only if there could be a proven indebtedness of an amount of M13,222.92 by defendant to the plaintiff. The defendant further denies completely that she is indebted to the plaintiff in any amount, [refer to paragraph 3 -Defendant's plea] This total denial of indebtedness by the defendant is not a new phenomenon which if the defendant is allowed to amend her plea to just a bare denial will not prejudice the plaintiff in any way.
The denial adds no further nor additional burden to the plaintiff to prove the defendants indebtedness to it. The defendant in paragraph 2 of her plea, is explaining further terms of the agreement between the parties. She is not, as I understand the expression, stating what actually took place between the parties.
3. JUDGMENT AND WRIT EXECUTION
On the 27th April, 2004 a default judgment was entered in favour of the plaintiff in the sum claimed i.e. M38,102.69 plus interest at the rate of 18.5% per annum and costs. On the 14th June, 2004, the Writ of Execution, directing the sheriff to attach and take into execution the movable goods of the defendant and to cause to be realized by public auction the sum of M38,102.69 together with interest thereon at the rate of 18.5% per annum starting calculations from the 25th February, 2001. It is no longer claimed from the date of the issue of the summons - 7th November 2001.
This calculations are to commence even before the summons were issued despite the growth of the debt from M13, 220.92 to M38,102.69 from 30th September, 1994 to the date on which the summons were filed with this court, which is the 7th November, 2001.
Why are the calculations of interests in the writ of execution commenced from the 25th February 2001? In the summons there is a specific prayer (11) that asks for the granting of interest at the rate of 18.5% per annum, from the date of the issue of the summons. Why in the writ does the plaintiff commence the calculation of interest before that date? There are no explanations for these obvious discrepancies.
4. EX-PARTE APPLICATION FOR STAY OF EXECUTION
An Ex-parte application for stay of execution pending rescission in terms of RULE 45 OF THE HIGH COURT RULES 1980, was filed with this court on the 8thJuly, 2004. The rule nisi was issued in the following terms:-
That a rule nisi do hereby issue calling upon the Respondents herein to show cause if any, why:-
the ordinary periods of notice and modes of service shall not be dispensed with due to the urgency of the matter.
execution of the order granted by default on the 27th April 2004 shall not be stayed pending the finalization hereof.
the order granted by default on the 27th April 2004 shall not be rescinded, corrected and/or set aside.
the Applicant herein shall not be granted leave to defend the main action in CIV/T/236/01.
If no abjection in writing as so mads, the party receiving such notice shall be deemed a have agreed to the amendment
(a) If any objection be made within the said period, th.5 party wishing to amend, shall within seven days of the receipt of such objection apply to court, on notice to all other parties that he will apply to court for leave to amend. (b) Such notice shall state the date when the application will be heard which date must be not less than ten days from the date on which the notice is given. The applicant shall at the same time set down the matter for hearing on such date.
Whenever the court has ordered an amendment or no objection has been made within the time specified in sub-rule (2), the party amending shall deliver the pleading or document as amended within the time specified in the court's order or within seven days of the expiry of the time prescribed in sub-rule (2) as the case may be.
When an amended pleading has been delivered in terms of this rule, the other party shall be entitled to plead there to or to amend consequentially any pleading already filed by him within fourteen days of the receipt of the amended pleading or within such time as the court may have ordered, if such be the case.
A party giving notice of amendment shall unless the court otherwise order, be liable to pay the costs thereby occasioned to any other party.
If an amendment is made by leave of the court in an application made under sub-rule (4) the court on granting leave may attach such conditions as to costs, or to further proceedings in the matter or such other conditions as it deems just
Nothing in this Rule shall be deemed to prevent an party applying to the trial court during the trial for an amendment of any pleading or document, at any time before judgment and the court on such application may grant or refuse the amendment and if granting it may make such order as to costs or adjournment or both, or otherwise as it thinks fit. (My underlining to highlight the salient points]
The plaintiff, on receipt of the Notice from the defendant to amend her plea, promptly within the period set out in the rules indicated in writing, that such an application to amend the defendant's plea will be or is opposed.
This was not the end of the matter. But to the defendant and her counsel nothing further was done. Why? It seems they could not find their way out of or through the legal maze created by RULE 33.
Having received an objection to amend the plea, the defendant still had an option to give further notice to all the parties, that she will now apply to court for leave to amend. [RULE 33 (4) HIGH COURT RULES (Supra)]. She did not do that within the period provided for by this rule. According to the plaintiff the defendant is presently time-barred. There is therefore a need to apply to court for condonation to take the necessary steps to lift the time-bar. The application for condonation for late filing or the filing out of time of the application to amend the plea, has not been placed before this court. Can the court mero motu condon the delay to file and prosecute the application to amend the plea?
This particular RULE 33 is very long and complicated. It consists of many provisions. It must be read carefully by a totally alert and skilful legal practitioner, otherwise one gets lost along the way. SUB-RULES (2) and (4) (a) set out specific periods within which any party desirous of taking any steps to amend or object should do so. SUB-RULE (9) on the contrary seems to extend those periods within which the party may take steps to seek to amend the pleadings or documents. This rule stretches the period as far as any time before judgment. Therefore this rule generally speaking seems to embody a great flexibility within itself.
The great deal is made of the defendant's failure to comply with this rule. The "rules, as the Honourable LEHOHLA J (as he then was) said, "are made for this court and not the court for the rules. "LESOTHO AGRICULTURAL DEVELOPMENT BANK VS. JUSTICE THABO MOKOTSO CIV/T/57/90 [unreported]. The rules are meant to guide the courts in their practice. The rules are not to be interpreted in such a way that they force the courts to commit the absurdities or even injustices. The rules are mere tools of convenience for the use of the courts. In the case of LESOTHO NATIONAL INSURANCE COMPANY (Pty) LTD. VS SOOTHO MABITSA CIV/T/122/92 [Unreported] Honourable MOLAI J granted the application for leave to amend. Reliance was placed on the High Court's discretionary powers bestowed on it by RULE 59 - HIGH COURT RULES 1980.
This rule provides ;-
"Notwithstanding anything contained in these Rules the court shall always have discretion, if it considers it to be in the interests of justice, to condone any proceedings in which the provisions of these rules are not followed", [my underlining]
The inevitable conclusion is therefore, there is no permanent and immovable time bar. The court has powers at all times to extend the periods within which the party is allowed to act.
The application to amend is opposed by the plaintiff on the grounds that the plaintiff company will be prejudice. How? There is a deafening silence on how the plaintiff will be prejudiced. Be that as it may.
In the same RULE 33, there is a provision which takes care of such situations where prejudice may result from the amended pleadings. SUB-RULE (6) makes a specific provision that "when amended pleading has been delivered in terms of this RULE 33, the other party shall be entitled to plead thereto or to amend consequently any pleadings filed by him", [my underlining] Therefore there can be no prejudice to anyone party resulting from the granting of the application to amend the pleadings, in terms of this RULE 33. The court is obliged to afford the other party an opportunity to react appropriately to a new situation. Therefore there is no likely prejudice when the case is re-opened after the setting aside of the default judgment. When the case re-opens, the parties must be given a fair and proper hearing of their cases. The main objective sought by the applicant in the application which set aside the default judgment, was the opportunity to be heard before the judgment could be made.
6. POWERS OF THE COURT
Perhaps related to the question of prejudice is the question of costs. There is always a chance that the court may provide relief by an award of costs for any prejudice likely to be suffered or actually suffered when an amended pleading is allowed. If an award of costs is not going to provide the relief the onus is on the plaintiff to show the court why that is his or her case.
The plaintiff has not only failed to show this court why and how the granting of an application to amend the pleading will prejudice it, but does not dispute that an award of costs, if considered appropriate, will compensate it adequately. SUB-RULE (8) gives the court powers to make an order of costs when it provides that "if an amendment is made by leave of the court in an application made under SUB-RULE (4) the court on granting leave may attach such conditions as to costs or to further proceedings in the matter or such conditions as it deems fit", [my underlining]
The main purpose of the granting of the application for stay of execution and the setting aside of the default judgment, was to afford the parties an opportunity to actually put their cases before the court in a proper hearing.
Therefore the party should not be penalized where it is established that a genuine error occurred. In the absence of the application for condonation for non-compliance with some of the HIGH COURT RULES, the court has the discretionary powers bestowed on it by the same rules, in particular RULE 59 HIGH COURT RULES [supra] to condon the failure by the defendant.
IN THE CIRCUMSTANCES, THIS APPLICATION TO AMEND THE DEFENDANTS PLEA MUST SUCCEED. IT IS THEREFORE ALLOWED WITH COSTS.
The plaintiff is entitled, if it wishes, to amend any subsequent pleadings when the amended plea is delivered. The plaintiff is still entitled to re-plicate in terms of the rules.
The defendant is allowed to file an amendment to her plea.
Plaintiff is entitled to file amendments to any pleadings already filed.
Plaintiff may replicate in terms of the rules.
Defendant is awarded the costs of today's hearing.
For Plaintiff : Mr. S. Malebanye
For Defendant : Mr. H. Nathane