Molapo v Mphuthing and Others (CIV/APN 188 of 94) [1995] LSCA 57 (17 March 1995)

CIV/APN/188/94 IN THE HIGH COURT OF LESOTHO In the matter between: GEORGE NTSEKE MOLAPO APPLICANT AND MAKHDTUMANE MPHUTHING HIS WORSHIP MR. NTHABI A. MAHLALUENE - MESSENGER OF COURT 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT JUDGMENT Delivered by the Honourable Mr. Justice W. C. M. Maqutu on the 17th day of March, 1995. This matter was argued on the 6th March, 1995 in the absence of the First Respondent. On the 2nd October, 1994 the First Respondent's attorneys had been served with the Notice of Set-Down informing them that the matter would be heard on the 6th March, 1995. Before proceeded with the hearing I directed Mr. Phoofolo the attorney for Applicant to find out why Mr. Hlaoli attorney for First Respondent was not before Court. -2- Mr. Phoofolo informed the Court that he saw Mr. Van Tonder (an advocate) who according to Mr. Phoofolo works closely with Mr. Hlaoli. Mr. Van Tonder informed Mr. Phoofolo that Mr. Hlaoli would not be available, Mr. Phoofolo insisted on proceeding with the matter as it was on the weekly roll which had been circulated to all legal practitioners a few days earlier. I then proceeded with the matter. This is an application for review against the judgment of the Magistrate for the Leribe district. In that matter the magistrate had dismissed an application for rescission of judgment that was made two months out of time when it should have been made within 30 days of the date on which Applicant knew of the judgment. See Order No. XXVIII Rule I(1) of the Subordinate Court Rules. Examining the record it is not clear when default judgment was entered. The magistrate has written what appears to be 11/2/93 but the rubber-stamp shows December 1993 and the date of 1st December is entered by hand. According to paragraph 5.2 of Applicant's founding affidavit, he first knew of the judgment on the 6th December, 1993. Summons had been served in his absence but he found them at his home on 3rd December, 1993. -3- It seems to me that an application for rescission of judgment should have been made on or before the 5th January, 1994. This was not done by Applicant's attorneys although Applicant had given them the summons to take appropriate action. They merely informed him default judgment was taken on 6th December, 1994. There does seem to be evidence that Applicant did not receive proper advice or his attorney did not take timeous action to have the judgment rescinded. Applicant seems to have only contented himself with paying the M600.00 which he admitted but failed to apply for rescission of judgment in respect of the M2000.00 damages which he disputes. Even so he only paid the M600.00 after a warrant of apprehension had been issued. The warrant was issued on the 29th December, 1993 while M600.00 was paid on the 6th January, 1994. Applicant's main concern was stated at the end of paragraph 6 of his affidavit before the Magistrate in the following words:- -4- "On the 11-3-94 a messenger came armed with a writ in the amount of M2000.00 I was shocked since we have settled." Applicant does not state the reasons for default after the 6th December, 1993 as he is expected to do. Rule 1.2 or Order XXVIII of the Subordinate Court Rules provides that Applicant "shall set forth shortly the reasons why Applicant did not appear*. — Rule 2(1) of Order XXVIII clarifies the position as follows: "The Court may on hearing any such application, unless it is proved the applicant was in wilful default, and if good cause is shown, rescind..." It seems to me that Applicant's affidavit does state why he did not enter appearance. That is because he was not in the country. What is clear is that Applicant was ignorant of the law or that his attorneys failed him. He merely paid the M600-00 that he knew he owed First Respondent and left the M2000-00 damages. That omission now haunts him. I think the words of Lord Atkin in the House of Lords decision in which the Court was dealing with a rescission of judgment are apposite, where he said: -5- "For my part, I am not prepared to accept the view that there is in law any presumption that any one, even a judge, knows all the rules and orders of the Supreme Court. The fact is that there is not, and never has been a presumption that every one knows the law. There is a rule that ignorance of the law does not excuse, a maxim of a very different application." -Evans v Bartlam 1937 2 All ER 646 at 649GH. In other words the maxim that ignorance of the law does not excuse is a purposeful precept applied in the public interest to buttress rather than undermine the rule of law. If people can plead ignorance of the law in all cases there can be chaos. When it comes to default judgment, the court wants to know the truth of what caused the default. It has the discretion to rescind judgment after evaluating the circumstance that caused the failure to abide by the rules. What really is Applicant's problem is that his application is out of time. If his application was not time barred I would have with respect differed from the magistrate. It is allegations made in the applicant's affidavit in support of an applicant's application for review before this Court that give me difficulty. They seem not to be properly considered. -6- Applicant legitimate complaint was that he had not received summons as he was entitled to expect. Yet the behaviour of the Applicant towards this default judgment once he knew it existed cannot gain any sympathy of the courts as the judgment would have been set aside as a matter of course if Applicant had applied. Nevertheless courts should never lose sight of the fact that as Lord Atkin stated crisply when he explained the rational behind rescission of judgments:- "The principle is that unless and until the court has pronounced a judgment on the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any rules of procedure." vide Evans v Bartlam [1937] All ER 646 at 650D. There is, unfortunately, a tendency among court practitioners to forget that default judgments are not intended to be a denial of the audi alteram partem precept. The procedure is simply designed to speed up the machinery of justice. To achieve that object courts apply their awesome coercive power of granting /. . . judgment against those who delay or default in responding to summons or court procedures. -7- Basically a default judgment revolves around neglect to take the required step timeously. To an ordinary person who finds a default judgment taken when he has not received summons, the procedure seems inexcusably unfair He fails to realise that default judgment is set aside as matter of cause provided there is no inexcusable neglect. Default judgments are based on, "a desire to avoid delays and protracted litigation and the court will always grant leave to purge a default where the justice of the case requires it, more especially if it is improbable that the action will be delayed by the granting of the application, or if the opposite party will not be prejudiced thereby." See Beck's Theory and Principles of Pleading in Civil Litigation 4th Edition by Isaac paragraph 80. Where there has been no personal service, to members of the public, rules of court on service of summons yield strange results. It therefore is possible for a simple law abiding man in Lesotho not to believe there can be rules of laws that can allow a judgment to be taken without his having stated his case. Default judgments in such circumstances collide head-on with the audi Alteram partem rule. This is what a reasonable person might -8- not expect. Courts have therefore been given a substantial discretion to rescind default judgments. Although the trial court has a discretion to rescind a default judgment on "good cause" being shown, such a court should never forget that default judgments are intended to avoid delays and to put pressure on litigants to speed up the finalisation of cases. They are not intended to prevent defaulting parties from putting their cases before the courts. Courts have to be on guard that laxity and abuse of the court process does not happen. For this reason courts may refuse to grant rescission of default judgments where there is wilful default. Landsdown JP in R v Tosela 1942 EDL 175 defined "wilful* in the following words: "In general, apart from any particular context, an act is wilful which is deliberate and intentional and not occasioned by ignorance, inadvertence, accident, not only is physical disability or like causes: knowledge present but volition is brought into activity." In the past ignorance of a simple person was often recognised as a reasonable ground for rescission of judgment. Indeed Lord Atkin in Evans v Bartlam [1937] 2 All ER 646 at 649 GH accepts that even a judge is not expected to know all the rules. Of late the attitude of courts have somewhat hardened Brink J in Grant v Plummers (Pty) Ltd 1949(2) SA 470 at 476 stated: -9- "If it appears, that his (i.e. applicant's) default was wilful or that it was due to gross negligence the court will not come to his assistance." The view I take of the matter is that while I agree with what has been said in Grant v Plummer it seems to me: "It would be impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of an indulgence. Any attempt to do so would merely hamper the exercise of a discretion which the Rules have purposely made extensive and which it is highly desirable not to abridge." Courts should keep discipline and speed up litigation and finalisation of cases. They should stamp their disapproval where there is a deliberate disregard of the court rules. In my view courts should never interpret the rules that govern the granting and rescission of default judgments in such a way that the audi alteram partem principle is undermined. A delay of necessity prejudices Plaintiff but a lot of the prejudice that a judgment creditor suffers can be met by an appropriate order as to costs. In thetty v Law Society Transvaal 1985(2) SA 756 at 765 BC Miller JA said there are two essential elements of "sufficient cause" for rescission and these are: -10- "(i) that the party seeking relief must present a reasonable and acceptable explanation for his default; and (ii) that on the merits such party has a bona fide defence which, prima facie carries some prospect of success. Miller JA had laid down these two requirements for rescission after saying "the term 'sufficient cause' (or 'good cause') defies precise or comprehensive definition, for many and various factors require to be considered." It will therefore be observed that rescission of judgment takes place after the court has balanced many factors. Miller JA in thetty v Law Society Transvaal at page 765D concluded: "It is not sufficient if one of these two requirements is met; for obvious reasons a party showing no prospects of success on the merits will fail in an application for rescission of a default judgment against him, no matter how reasonable and convincing the explanation for his default. And, an ordered judicial process would be negated if, on the other hand, a party who could offer no explanation other than his disdain of the Rules was nevertheless /. . . permitted to have a judgment against him rescinded on the ground that he had reasonable prospects on the merits." -11- In this case Applicant is an ordinary man (probably what one might suspect as being not well educated). In thetty v Law Society Transvaal the appellant with whom Miller JA was dealing with was a practising attorney. Appellant had gone overseas and had been given substantial latitude. A rule nisi had been granted against him which was only confirmed four months later after a great deal of correspondence between the attorneys of both parties. In a case such as that one the court could legitimately speak of applicant as having "no explanation of his default other than his disdain of the Rules". What is clear is that Applicant knew of the judgment three months before and that Applicant's application was (in terms of the rules) brought two months too late. The door of the Magistrate's Court was closed to Applicant unless his case fell under Section 21 of the Subordinate Courts Order of 1988. This applies to judgment obtained by fraud, mistake common to both parties and was void ab origine. In that event it had to be brought within one year of the ground of invalidity coming to the notice of Applicant. See Order XXVIII Rule 3(2) of the Subordinate Court Rules. -12- It seems wrong to say default judgment was granted on the 29th November, 1993 as Applicant alleges. Default judgment seems to have been granted on the 1st December, 1993 or thereabout if we go by the rubber stamp on the Magistrate's file. Indeed the Warrant of Execution that was issued on the 6th December, 1993 states that judgment was entered on the 1st December, 1993. Only the request for default judgment was filed with the court on the 29th November, 1993. I do not see how this point could help applicant in any way. He alleges judgment was given before the 7 days that a defendant was given having regard to the fact that summons was served on the 20th November, 1993, It would seem to me that judgment was taken eleven days after service of summons if we accept that judgment was entered on 1st December, 1993. I am therefore satisfied that there was no irregularity as Applicant alleged before the Magistrate. Belatedly applicant raises the illegality of the contract for the sale of land. It is not by any means clear whether sale of "rights over a certain residential site" means the same thing as sale of land. Leases are sometimes sold or assigned for a consideration. Yet these are rights over land. There is problem of whether the damages of M2000.00 are based on evidence. the basis of the judgment is the following evidence: -13- "for all this time I had rented at Mrs. Moholisa's where I paid M80.00 per month as rental, it was in 1990 when I paid in that money., I had applied for a residential site I wanted to improve and build my house there. I estimate I have been paying rental to I also used public Mrs. Moholisa of ±M1900.00. transport and my car to go and ask for my money back, I intended to built my house immediately. 1 was forced to go back to my parental home. And as a result of defendant's action I have incurred damages of M2000.00 or so." There is no evidence that Plaintiff had the money to build a house. All that he has shown is that he in fact had no money. Because he had no money he had to go back to his parental home. If he could not build a house he had to live on rented accommodation or at his parental home. Plaintiff has put no evidence on record that entitled him to judgment. The fact that a default judgment is being asked for does not mean rules of evidence and procedure must not be followed. In Cohen Ltd v Koekermoer 1949(2) SA 807 the court refused to grant a default judgment where there was no allegation that a condition that made the debt due and payable had been broken. In my view the magistrate was obliged to scrutinise the evidence in order to determine whether the cause of action and the quantum of damages had been proved. In Ber v Brand 1960(1) SA 584 at page 588 A Herbstein J dealing with a case involving damages said: -14- "In the instant case the contract itself afforded the evidence... Where this is not clear, the plaintiff may not be able to obtain a default judgment but may have to file a declaration and lead evidence." By evidence I understand evidence that proves the damages. I have already held the evidence that Plaintiff gave does not prove the damages claimed. In Knight v Harris 1962(2) SA 317 at 319 Beadle CJ dealing with rules of court that are different from ours in a default judgment application said: "There is, moreover, an additional reason why in this case the court should not dispense with the hearing of evidence, that is, because so far as the court is aware, the proceedings have not been brought to the personal notice of the defendant. It is not easy to infer in this case, therefore, that the defendant had no objection to the claim as it would be in a case where personal service had been effected and no appearance and plea filed." Applicant was not personally served with the summons, therefore these words of Beadle CJ apply to him. The rules of the -15- Subordinate Court are clear on the question of evidence in matters of damages. Taking a default judgment does not entitle a plaintiff to judgment even where he has not led evidence to prove his claim. In this case Plaintiff led evidence, but unfortunately he did not lead the evidence that proved his claim of damages. This fact completely escaped the attention of the trial Court, Giving judgment without the requisite evidence amounts to giving judgment illegally. It is the same as not admitting admissible evidence, admitting inadmissible or incompetent evidence. Giving judgment without evidence goes to the method rather than the result. Naturally the method is bound to affect the result. In Visser v Estate Collins 1952(2) SA 546 where it was found a magistrate rescinding a default judgment had acted on no evidence on which he could rescind the judgment, the matter was corrected on review. The Magistrate's judgment was set aside. In this case that we are dealing with is the opposite because the Magistrate granted a default judgment. Schreiner JA in Goldfield Investment Ltd v Another v City /. . . Council of Johannesburg & Another 1938 TPD 551 where he said, -16- "It is not merely high handed or arbitrary conduct which is described as gross irregularity; behaviour which is perfectly well-intentioned and bona fide though mistaken may come under this description. The crucial question is whether it prevented fair trial of issues." In this case the Magistrate bona fide granted a default judgment on damages, believing she was doing so on evidence - when in fact there was no evidence. In the case of Mpevu 6 Others v Nqasala 26 SC 531 at page 534 De Villiers CJ said:- "To give judgment against any man without any evidence whatever against him seems to be a greater irregularity than to reject legal evidence or admit illegal evidence, for it ignores the very object for which all the rules of evidence exist." This is precisely the reason in terms of Rule 4(4) of Order X of the Subordinate Court Rules provides that:- "the Clerk of the Court shall refer to the court any request made under Rule 2 or Rule 3 of this Order for entry of judgment on a claim of damages and the plaintiff shall furnish the court evidence either oral /... or by affidavit of the nature and extent of the damages suffered by him. The Court shall thereupon assess the amount recoverable by plaintiff as damages and shall enter judgment therefor." -17- I have already said the court mistakenly believed Plaintiff had provided it with evidence and by it proved the extent of the damages suffered by him when in fact Plaintiff had failed to do so. To put the Magistrate's mistake in Schreiner J's remarks the Magistrate's Court in granting that default judgment was, "misconceiving the whole nature of the enquiry, or of its duties in connection therewith,..." I note Respondent had taken the point in limine that the Magistrate when being taken on review was being sued. That is incorrect he is merely cited in order that she can be compelled to send the record to this Court for review. In the light of the aforegoing I set-aside the default judgment in respect of damages of M2000.00 entered against Applicant. On the question of costs I feel the proper judgment should be that each party should pay its own costs and it is so ordered. -18- W. C. M. MAQUTO JUDGE For Applicant For 1st Respondent: Mr. T. Hlaoli : Mr. H. Phoofolo