- Case summary
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SUMMARY
Civil Practice: Application for rescission of default judgment- Principles applicable under 27 of the High Court Rules 1980 considered and applied- Application found to be bona fide and accordingly granted with costs.
IN THE HIGH COURT OF LESOTHO
(COMMERCIAL DIVISION)
HELD AT MASERU CCT/0376/2020
In the matter between
FANTASTIC CLOTHING (PTY) LTD APPLICANT
AND
LUQY’S GROUP INVESTMENT (PTY) LTD 1ST RESPONDENT
DEPUTY SHERIFF – LEQHAOE/LIPHOLO 2ND RESPONDENT
TAIYUEN TEXTILE CO. (PTY) LTD 3RD RESPONDENT
AND
DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT
AND
LUQY’S GROUP INVESTMENT (PTY) LTD 1ST RESPONDENT
FANTASTIC CLOTHING (PTY) LTD 2ND RESPONDENT
TAI YUEN TEXTILE (SA) (PTY) LTD 3RD RESPONDENT
Neutral Citation: Fantastic Clothing (Pty) Ltd v Luqy’s Group Investment (Pty) Ltd & Others AND DPP v Luqy’s Group Investment and Others [2024] LSHC 24 Com. (26 FEBRUARY 2024)
CORAM: MOKHESI J
HEARD: 31 AUGUST 2023 & 03 OCTOBER 2023
DELIVERED: 26 FEBRUARY 2024
SUMMARY
Civil Practice: Application for rescission of default judgment- Principles applicable under 27 of the High Court Rules 1980 considered and applied- Application found to be bona fide and accordingly granted with costs.
ANNOTATIONS
Legislation
High Court (Commercial) Rules, 2011
High Court Rules 1980
Cases
Chetty v Law Society, Transvaal 1985 (2) 756 (A)
De Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co. Ltd 1994 (4) SA 705 (E)
Doti Store v Herschel Foods (Pty) Ltd 1982 – 1984 LLR 338)
Harris v ABSA Bank Ltd t/a Volkskas 2006 (4) SA 527 (TPD) at 529
Letsie v Commander of the Lesotho Defence Force and Others LAC (2011-2012) 48
Plascons Evans Paints Ltd v Van Riebeek Paints Ltd 1984 (3) SA 623 (AD)
Pule v ERF 1083 Rooihuiskraal (Pty) Ltd (45664/07) [2018] ZAGPPHC 636 (3 august 2018)
Rand Refinery Limited v Sehunane N.O and Others [2023] BCLR 1235 (CC) (21 August 2023)
Silber v Ozen wholesalers (Pty) Ltd 1954 (2) SA 345 (A)
Tšeliso Mokhosi and Others v Justice Charles Hungwe and Others Const. Case no./02/2019 (02 May 2019) (unreported)
Books
Van Loggerenberg Erasmus Superior Court Practice 2nd Ed. (Constitutional Court Parts) Vol. 1
JUDGMENT
[1] Introduction
This matter concerns two rescission applications against the orders which were granted by Mahase J. by default of appearance of the respondents. The first application is by a company known as Fantastic Clothing (Pty) Ltd against Lugy’s Group Investment (Pty) Ltd as the 1st respondent, Deputy Sheriff Leqhaoe as the 2nd respondent and third respondent, Tai Yuen Textile Co. (Pty) Ltd. The second application is by The Director of Public Prosecutions against Luqy’s Group Investment (Pty) Ltd as the 1st respondent, Fantastic Clothing (Pty) Ltd as the 2nd respondent and Tai Yuen Textile (SA) (Pty) Ltd as the 3rd respondent. For the sake of convenience, I will refer to the first application as “Fantastic Application” and the 2nd rescission application as the “DPP Application.”
[2] In the Fantastic Application the following reliefs are sought:
“1. Dispensing with the forms and service and time limits provided for in the Rules, and hearing the matter as one of urgency at such time and in such manner and in accordance with such procedure as this Honourable Court may deem fit.
2. A rule nisi is issued calling upon the Respondents to show cause (if any) on a date as determined by this Honourable Court why an order in the following terms should not be made:
2.1 The writ of execution issued out on the 10th November 2020 in CCT/0376/2020 shall not be rescinded;
2.2 The default judgment entered in favour of the 1st Respondent on or about the 10th November 2020 in CCT/0376/2020 shall not be rescinded;
2.3 The 1st and 2nd Respondents shall not be directed to pay costs of this application and the 3rd Respondent only in the event of opposing the application.
2.4 The applicant shall not be granted further and/or alternative relief.”
[3] In the DPP Application the applicant seeks the following orders:
“INTERIM RELIEF
1. Dispensing with the Rules relating to notice and service of process owing to urgency of this application.
2. That this Honourable Court gives such directions as to time and procedure regarding how this matter may be dealt with.
3. The judgment of this Honourable Court granted on the 10th November 2020 shall not be suspended or stayed pending the outcome of this application.
4. Applicant be and is hereby granted leave to intervene as Respondents in the consolidated application CCT/0376/2020 pending before this court.
5. It be directed that the items seized pursuant to the writ of execution be not damaged, destroyed or tempered with in any manner purposed to destroy the evidence in a pending criminal trial.
FINAL RELIEF
6. The order of this Honourable Court dated 10th day of November 2020 be and is hereby rescinded.
7. The applicants be given leave to file opposing affidavits and file legal submissions in opposition to the reliefs and claims set out in the summons.
8. The respondents be directed to pay costs in the event of opposition.
9. Applicant be granted further and/or alternative relief as the court may deem fit.”
[4] Factual Matrix – Fantastic Application
Fantastic Clothing (the applicant) entered into a sale agreement with the 1st respondent (Luqy’s Investment) around February 2020, in terms of which the 1st respondent purchased a M1,330,000.00 worth of fabric from the applicant. The 1st respondent paid M650,000.00 on 13 February 2020. Further separate payments in the amount of M350,000.00 and M330,000.00 were made by the 1st respondent on the 25 February 2020 and 09 March 2020 respectively. It should be stated that all these payments were made into the 3rd respondent’s bank account as per the instruction of the applicant’s management. The fabric was duly collected by the 1st respondent on 11 to 13 February 2020.
[5] Disagreements erupted because of the quality of the fabric supplied as well as its shortage, resulting, allegedly, in the contracted quantity not being fully supplied. On 18 August 2020 the 1st respondent instituted proceedings in CCA/0090/2020 whose aim was to attach the applicant’s goods in order to “found jurisdiction” on the ground that the applicant was closing shop and relocating to the Republic of South Africa. As a result of this application a substantial quantity of fabric was attached and removed from the applicant’s premises. The applicant did not contest the attachment. Consequently, 1st respondent issued summons against the applicant on 06 October 2020. It is contentious whether the applicant was served with this summons, in fact, it is an issue which to be determined in this matter. What is important is that default judgment was entered against the applicant on 10 November 2020 and a writ of execution issued on the same date. On 13 November 2020 the applicant filed the current rescission application. Following the granting of the above-stated default judgment, on 20 November 2020, the DPP Application was lodged. The DPP was seeking to intervene and be joined as the respondent as to be given leave to file submissions in opposition to the reliefs sought in the summons. On 02 December 2020, the learned Chief Justice, after hearing counsel ordered that the DPP be joined as respondent and further that the items seized pursuant to the writ of execution be not damaged or destroyed pending finalization of a pending criminal trial.
[6] Parties’ Contentions
Applicants’ arguments
In the Fantastic Application, the applicant seeks to have the default judgment rescinded because of what it considers as an irregular service of summons. It avers that the summons was served on one ‘Masechaba Mamooe who is described in the Return of Service as the acting Manager of the defendants (now applicant). The deponent to the founding affidavit avers that he is the Acting Manager of the applicant not Ms ‘Masechaba Mamooe whom he describes as “just a Human Resources Clerk for the Applicant and has never been appointed as acting Manager for the Applicant and the 3rd Respondent herein”. The deponent avers that the said ‘Masechaba kept the court process in her locker and forgot to give it to him when he arrived back in Lesotho from abroad.
[7] The deponent avers that “it was not out of any default let alone wilful default that the matter was not defended,” and further under para. 5.8 she avers that “the judgment was sought and granted erroneously since at the time it was granted, there existed facts which the Honourable Court was unaware of, which would have induced it not to grant the judgment if it was aware of.” The deponent avers that the applicant has a bona fide defence to the 1st respondent’s claim as the latter had collected all the fabric it had purchased from the applicant in February 2020, and that it had fulfilled its obligations under the contract. Ms ‘Masechaba filed the confirmatory affidavit wherein she states that the process was left with her as a Human Resources Clerk and that its exigency and nature were never explained to her by the Deputy Sheriff.
[8] The 1st respondent on the one hand maintains that the applicant did not fulfil its side of the bargain by delivering the full quantity of the fabric contracted for. The 1st respondent avers that the summons was duly served in accordance with the Rules as it was served upon the applicant’s acting Manager, Ms ‘Masechaba Mamooe, who had always been receiving court process in matters involving the parties. The deponent even referred to annexure “LQ7” where Ms ‘Masechaba Mamooe signed the applicant’s letters as its Human Resources Manager. Further reference was made to annexure “LQ8” which is an answering affidavit in CCA/0057/2020 in which Ms ‘Masechaba Mamooe deposed as “acting as the Managing Director of both this (sic) Companies in Lesotho as the substantive Managing Director has been affected by lockdown both in Lesotho and South Africa and the said Managing Director is currently in Durban …” Ms Mamooe was deposing to the affidavit as the Acting Managing director of the applicant and the 3rd respondent.
[9] DPP Application
As already stated, the DPP lodged the application for intervention which was granted by the Chief Justice on 02 December 2020. Essentially the DPP’s bone of contention is that the items which were attached and removed on the strength of Mahase J’s order were exhibits in the criminal trial in the Leribe Magistrate’s Court and that they were kept at the premises of the applicant “pursuant to LMPS 12.” In that criminal case the deponent to the answering affidavit is a suspect. The DPP has attached a list of machinery and fabric rolls suspected to have been stolen.
[10] A supporting affidavit of Police Constable Tsela ‘Nono who is the investigator in the case of theft was filed. In it he says that the removed items were exhibits in a case of theft involving Mrs Mairoon Adams who is the Managing director of the 1st respondent. The deponent avers that the ‘exhibits’ were kept on instruction of the Clerk of Court, and that LMPS12 police form was filled out with the details of the recovered goods. But it should be stated that no such LMPS12 form has been attached to the deponent’s affidavit nor a confirmatory affidavit of the Clerk of Court annexed.
[11] This application is opposed by the 1st respondent. Mrs Mairoon Adams has deposed to the answering affidavit on behalf of the 1st respondent. In the answering affidavit, before pleading over, she raised three points in limine, namely; (i) non-joinder of the deputy sheriffs, and the Clerk of Court for the Leribe Magistrates Court, (ii) DPP’s lack of locus standi to sue; (iii) DPP’s lack of capacity or authority to sue in civil matters. Mrs Adams argued further that the matter was not urgent as the court had granted stay and the 2nd respondent on being granted stay put up security for the judgment debt and costs in the amount of M2,000,000.00 in exchange for the return of the attached property. She denies that the items are exhibits as there is no proof of that fact. She avers that when default judgment was granted against the applicant in the Fantastic Application, the applicant in the latter application had not filed its notice of appearance to defend.
[12] Mrs Adams further attacked the supporting affidavit of Police Officer ‘Nono as being fatally defective for lacking “the requirement that the facts that deponents’ allegations are true and correct and where he gets the information from …”
[13] I deal with the respective applications in turn, but I wish to deal first with the DPP Application. Apart from the preliminary legal points which have been raised by Mrs Adams, in my view, this matter can be disposed of on a different basis which I articulate in turn. Both matters were heard on 31 August 2023 and during the pendency of judgments, from 15 September 2023 to 17 November 2023 I was released by the Chief Justice to seat on the Court of Appeal. During that time, I formed an opinion that in the DPP Application, the Senior Clerk of the Magistrate Court for the Leribe District and the Deputy Sheriffs who effected execution should be joined and served with the application.
[14] The essence of joining these parties was to shed light on what transpired in relation to the property in issue. Then on 03 October 2023 I summoned counsel who are involved in this matter to appear before me, the purpose of which was to order the joinder of these parties and their service with the application. Before me that day was Adv. M. G. Makara for the 1st respondent in the main, Adv. L.A Molapo for the 1st respondent and Adv. C.J Lephuthing for the DPP (applicant) as well as Mr Rasekoai who said he appeared for 2nd respondent. The Court made an order that the Deputy Sheriff and the Senior Clerk of court for the district of Leribe be joined in the proceedings and for them to be served with application. The applicant’s counsel (Adv. Lephuthing) was given until 13 October 2023 to do so.
[15] At the time of writing this judgment the applicant’s counsel did not comply with this order of court because no return of service evincing service upon these parties has been filed of record. The question is what should be done in these circumstances where an order of court has not been complied with. The answer lies in the rules of this court. Rule 15 of the High Court (Commercial) Rules, 2011 provides that:
“If a party fails to comply with a Court order the judge may at his own discretion –
- extend the deadline for compliance;
- dismiss the claim or counterclaim in whole or in part; or
- award costs.”
[16] Given that there is no clarity on the identity of the property which the Clerk of Court is alleged to have directed that it be kept in the premises of the 2nd respondent, this court exercises its discretion to dismiss this application with costs.
[17] I turn now to deal with the main application (Fantastic Application). The bedrock of the applicant’s case is that the summons was served on ‘Masechaba Mamooe who kept it in a locker and forgot to give to Heng-I (Ben) Yu when he returned to Lesotho. Ben Yu further avers that the Deputy Sheriff who served the process to ‘Masechaba did not explain the nature and contents of the court process to make her understand its import. The applicant contends that its default was not wilful for this reason. It argues that when default judgment was granted the court was not made aware that the 1st respondent “collected all the fabric that it had bought from the Applicant in February 2020,” and that there was no fabric which was defective as alleged. In the heads of argument, the applicant raised for the first time an argument that evidence was not led when default judgment was heard. I turn to deal with the issues raised.
[18] It is trite that rescission applications can be dealt with through three pathways:
- Under Rule 45 of the High Court Rules.
- Under Rule 27 of the High Court Rules and
- Under the Common law.
[19] The requirements for establishing a case for rescission under the common law and Rule 27 differ from those of Rule 45. Where the applicant has not stated clearly under which pathway the application was brought, the language used in the founding papers is often decisive in providing a guide (Letsie v Commander of the Lesotho Defence Force and Others LAC (2011-2012) 48 at paras [8] and [9]). In the present matter the applicant uses the phrases such as “… it was not out of any default let alone wilful default that the matter was not defended,” and that “the Applicant was bona fide defence.” This is not the language that is used when Rule 45 gets invoked. Rule 45 requires that it be shown that judgment or order was erroneously sought or granted in the absence of the party affected by it.
[20] In terms of Rule 27 the applicant needs to show “good cause” for setting aside default judgment. To show a good cause the applicant must:
- Give a reasonable explanation for its default, and
- Show the existence of a bona fide defence, by which it means the defence must have some prospects of success (Harris v ABSA Bank Ltd t/a Volkskas 2006 (4) SA 527 (TPD) at 529).
[21] The above requirements must co-exist because without prospects of success on the merits a reasonable explanation for default will not have any compensatory effect in influencing rescission to be granted (Chetty v Law Society, Transvaal 1985 (2) 756 (A) at 765 A – C). Whether or not the applicant was wilful or negligent, is merely a component of a “good cause” to be shown. It is a factor which the court should consider when determining whether good cause has successfully been shown (Harris v Absa Bank Ltd t/a Volkskas 2006 (4) SA 527 (T) at 529: De Witts Auto Repairs (Pty) Ltd v Fedgen Insurance 1994 (4) SA 705 (E) at 708G. The applicant must provide particularity for his default for the court to fully understand the reason for such default (Silber v Ozen wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 353A.
[22] Explanation for default
As stated in the preceding paragraphs, the applicant puts the reason for its default at the door of Ms ‘Masechaba Mamooe who it says after being served with the summons, she placed them in the locker and forgot to hand them over to the manager when he arrived (Ben-Yu), and further, that Ms Mamooe was not the applicant’s Acting manager as stated in the return of service. She supports this assertion by saying that the matters were made worse by the failure of the Deputy Sheriff to explain the nature and exigency of the summons to her contrary to Rule 4 of the High Court Rules 1980.
[[23] Rule 4(d) of the High Court Rules provides that:
“Where the person to be served is a company or other corporate body service shall be effected by delivering a copy of the process, to some responsible employee thereof at the registered office or principal place of business of such company or corporate body within the court’s jurisdiction. Provided that if there is no such employee willing to accept service by affixing a copy of the process to the main door of such office or place of business or by addressing a registered copy of such process to the registered office or principal place of business of such company or corporate body;
Provided further that if there is any statute or law providing for a manner of service on such company or corporate body service shall be effected in such manner as provided by the statute or law.”
[24] The applicant’s case is based on the Deputy Sheriff’s non-compliance with this rule. In order to prove that Ms Mamooe was the Acting Manager as stated in the return of service, the 1st respondent annexed to its answering affidavit annexures “LQ7” and “LQ8” which are a letter of retrenchment of one ‘Makabelo C. Letsepa signed by one ‘Masechaba Mamooe as Human Resources Manager of the applicant and an answering affidavit of one ‘Masechaba ‘Mamooe in a matter of FXB Logistic and Distributors and Another v Tai Yuen (Pty) Ltd (1st respondent) and Fantastic Clothing (2nd Respondent), in which she deposed as the Human Resources Manager, respectively.
[25] I wish to deal with the annexed answering affidavit of Ms Mamooe which was deposed in a matter concerning different parties and where the issues were different. This affidavit is hearsay and cannot be relied on to prove the truth of what it says. This is trite. The affidavit of one party in another proceedings cannot just be uplifted and put before another court as proof of what it says. This principle was recognised in the case of Tšeliso Mokhosi and Others v Justice Charles Hungwe and Others Const. Case no./02/2019 (02 May 2019) (unreported) at para. [27]:
“At common law, the testimony of witness in earlier judicial proceedings is admissible at a subsequent trial provided that (a) the proceedings are between the same parties; (b) the issues are substantially the same, the witness cannot be called because he is dead, insane or too ill to attend….”
[26] The South African Constitutional Court recognized the same principle and applied it in Rand Refinery Limited v Sehunane N.O and Others [2023] BCLR 1235 (CC) (21 August 2023) at para. [22]:
“… The procedure which Mr Maseko followed – simply attaching copies of affidavits made by others in High Court litigation – was not strictly correct. The attached copies were hearsay evidence in the Labour Court. If Mr Maseko wanted Mr Mulafi’s evidence in the High Court to be adduced in the Labour Court, he should have obtained a new affidavit from Mr Mulafi. A copy of evidence given by a witness in earlier proceedings is not admissible in later proceedings merely because the witness gave the earlier evidence under oath.”
[27] For this reason annexure “LQ8” is inadmissible in these proceedings. As for annexure “LQ7” the applicant makes a bare denial that it is “irrelevant for purposes of this application.” Ms Mamooe does not deny that she is the one who issued the retrenchment letter in June 2020 as Human Resources Manager, not as a lowly employee as she would have this court belief in these proceedings. To prove that she was not a lowly employee of the applicant, in her confirmatory affidavit to the replying affidavit of Heng-I (Ben) Yu she avers that “I confirm that for all intends and purposes my official position is that of Human Resources Clerk. I accept that I may have refereed (sic) to myself as Human Resources Manager simply because at the time there was no manager and I was performing his functions. But I have never been officially appointed to that position,”
[28] If follows that the applicant has failed to impeach with the clearest evidence the return of service to the extent that it states that she was the applicant’s Acting Manager (see Doti Store v Herschel Foods (Pty) Ltd 1982 – 1984 LLR 338). Based on Plascons Evans Paints Ltd v Van Riebeek Paints Ltd 1984 (3) SA 623 (AD) the version of the 1st respondent cannot be rejected on the papers on account of it being palpably implausible, far-fetched or untenable nor does it amount to a bald or uncreditworthy denial. Within the meaning of Rule 4(d) Ms Mamooe was the responsible employee of the applicant capable of receiving court process.
[29] Failure by Ms Mamooe to give summons to the Applicant’s Manager.
The applicant’s manager Ben Yu explains, supported my Ms Mamooe, that the applicant was not in wilful default of appearance because Ms Mamooe put the summons in her locker and forgot to give it to him when he returned from abroad. As the 1st respondent correctly points out Ms Mamooe was responsible person capable of receiving court process and on 18 August 2020 when CCA/0090/2020 was launched to attach the applicant’s goods to found jurisdiction she was already employed there. It is inconceivable that she would forget to give summons against her employer its manager. She seeks to augment her stance by averring that what compounded her forgetfulness is the fact that when the Deputy Sheriff served the summons on her he did not explain their exigency and purport to her. I turn to consider whether this assertion is sound in law.
[30] In terms of Rule 5 (a):
“if service is effected by the Sheriff, it is his duty to explain the nature and contents of the process or documents served to the person upon whom service is effected and to state in his return that he has done so.”
[31] It is common cause that the return of service in issue does not show that the nature and contents of the summons was explained by the Deputy Sheriff. In Doti Stores v Herschel Foods (above) it was stated that the return of service is a prima facie proof of what it says and in order to impeach it, clearest evidence must be adduced. In the present matter, on the face of the return of service, the nature and contents of the summons were not explained to Ms Mamooe.
[32] However that is not the end of matter as was stated by the learned author Van Loggerenberg Erasmus Superior Court Practice 2nd Ed. (Constitutional Court Parts) Vol. 1 at p. A2 – 183:
“It is always permissible to supplement an incomplete return or to explain an ambiguous or incorrect one by oral evidence, and, if it is thereby shown that service was in fact executed in accordance with the rules, the erroneous return does not invalidate the service.”
[33] Mr Phafane for the applicant cited the South African authority of Pule v ERF 1083 Rooihuiskraal (Pty) Ltd (45664/07) [2018] ZAGPPHC 636 (3 august 2018) at para. [21] where the court said:
“Failure by the sheriff to explain to the applicant, resulted in the service being irregular as this was in flagrant disregard of his or her duties as stipulated in the uniform Rules of Court. Therefore, I find that the applicant provided a reasonable explanation for its default, he was not in wilful default.”
[34] As the Applicant’s Counsel Adv. M.G Makara correctly pointed out; the two cases are distinguishable. In the above matter the contents of the return of service were being challenged on account that the sheriff failed to explain to the applicant the documents he was served with. This challenge was not met with controverting evidence hence the court at para. [19] said:
“It follows therefore, that the contents of the return of service may be challenged. The applicant stated that the sheriff failed to explain to him the documents presented to him. Once service is challenged, the respondent is required to call the sheriff who effected service to testify. Save for contending that applicant’s refusal of process constitutes wilful default, the respondent did not refute the applicant’s version.”
[35] In the present case the applicant’s challenge has been met by Deputy Sheriff Thabo Leqhaoe in his supporting affidavit to the answering affidavit of Ms Adams when he avers that the “purport and exigency of the summons was clearly explained to ‘Masechaba Mamooe.” The deficiency in the return has been explained.
[36] It is trite that a determination of the sufficiency of explanation in application for rescission, must be done “in the light of the nature of the defence, which is an important consideration, and in the light of all the facts and circumstances of the case as a whole” (De Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co. Ltd 1994 (4) SA 705 (E) at 711D).
[37] The 1st respondent’s case is that the applicant owes it, as the consignment of the fabric it ordered was mixed with worthless ones: Hence at para [6.5] of its answering affidavit it states:
“6.5 I paid the deposit of M650,000.00.00 on the 13th February 2020 and we started receiving deliveries. Due to their bulkiness we were unable to weigh them immediately as they came. The total weight of the fabric was to be 38 tons per the agreement and the amounts of M350,000.00 and R330,000.00 were paid by the 1st Respondent as instructed by the Applicant, on the 25th February 2020 and the 09th March 2020 respectively. I attach hereto proof of the payment and collectively mark them “LQ 1A” to “LQ 1C”. The 1st Respondent notice that tons of remnants were loaded in between contrary to the agreement. The said fact was brought to the attention of the Applicant and they agreed to sort that out. They, however, failed to do so to date.
6.6 Furthermore, the Applicant only allowed the 1st Respondent’s labourer to load only half of a pallet instead of the full pallet of the fabric contrary to the agreement.”
[38] The applicant Acting Manager Heng – I (Ben) Yu denies the above allegations and avers that the 1st respondent collected all the fabric in terms of the agreement. In a nutshell the applicant’s defence is that it does not owe the 1st respondent as the latter collected all the fabric. The 1st respondent has not provided proof that it did not collect all the fabric. In the light of this, one cannot readily discount the applicant’s defence as not being bona fide. The applicant’s defence has some prospects of success. The application is bona fide. The applicant has shown good cause for the default. Although I find that the applicant’s explanation for default is bad, but that considered in the light of its defence impels this court to grant the application.
[39] In the result the following order is made:
- The “DPP’s Application” is dismissed with costs.
- The “Fantastic Application” succeeds with costs.
______________________________
MOKHESI J
For the Application in the DPP
(i) For the Applicant: Adv. C.J Lephuthing
(ii) For the 1st Respondent: Adv. L.D Molapo
(iii) For the 2nd and 3rd Respondent: Adv. S. Phafane KC
For the Applicant in “Fantastic Application” Adv. S. Phafane KC
For 2nd and 3rd Respondents: No Representation