Mafereka v Lefeta and Another (CIV/APN/390/93; CIV/APN/510/93) [1994] LSCA 16 (26 January 1994)

1 CIV/APN/390/93 CIV/APN/510/93 IN THE HIGH COURT OF LESOTHO HELD AT MASERU In the matter between KOSE JOSHUA MAFEREKA Applicant and TLALI LEFETA THE DEPUTY SHERIFF 1st Respondent 2nd Respondent J U D G M E NT Delivered by the Hon. Mr. Justice W. C. M. Magutu Acting Judge on the 26th day of January. 1 9 9. For reasons that will be obvious in the judgment, I shall refer to Applicant Rose Joshua Mafereka as the First Respondent and the First Respondent as the Applicant. This is being done to avoid confusion This is an application for rescission of judgment. It is now also accompanied by an application seeking to protect the motor vehicle (the property that is the subject of this application) from d e t e r i o r a t i on by having it taken away from the parties to have it kept by the Deputy sheriff pending the finalisation of this a p p l i c a t i o n. On the 13th S e p t e m b e r, 1 9 9 3, applicant instituted these proceedings in C I V / A P N / 3 9 0 / 93 by way of urgent application ex parte before this court and obtained the following o r d e r :- " 1. A rule m s1 do hereby issue calling upon the Respondents to show cause, if any, on the 27th day of S e p t e m b e r, 1993 at 9 30 a.m. in the forenoon or so soon thereafter as the matter may be conveniently heard why.- is there (a) In the event of Third Respondent no deciding that justification in holding the 1989 Model Toyota Hiace with chassis and engine numbers Y H 6 3 V 9 0 0 5 6 07 r e s p e c t i v e l y, and registration presently number deputy- sheriff shall not be directed to seize and keep the same in safe custody pending the finalization of this a p p l i c a t i o n; 4Y9035328 O G 1 4 7 9 9, bearing the (b) The vehicle described above shall not be released forthwith to Applicant h e r e i n, (c) First and Respondents Second shall not be directed to pay the costs herein, (d) Granting Applicants such further and/or alternative relief as this Honourable Court may deem fit. 2. T h at e f f e ct as a t e m p o r a ry i n t e r d i c t ." l ( a) o p e r a t es w i th rule i m m e d i a te M r. K h a s i pe an a t t o r n ey (on b e h a lf of F i r st R e s p o n d e n t) f i l ed of r e c o rd a n o t i ce of i n t e n t i on to o p p o se t h is a p p l i c a t i on on t he 17th S e p t e m b e r, 1 9 9 3. E l i as M o k h o si w ho is c e n t r al to t h is p r o c e e d i n gs and w ho was c i t ed as S e c o nd R e s p o n d e nt did not o p p o se t h is a p p l i c a t i o n. T he P o l i ce and the A t t o r n ey G e n e r al a l so did n ot o p p o se t h is a p p l i c a t i o n. On the 27th S e p t e m b e r, 1 9 93 t he R u le N i si w as e x t e n d ed to the 18th S e p t e m b e r, 1 9 93 On the 18th O c t o b e r, 1 9 93 the R u le Nisi w as c o n f i r m ed by d e f a u l t. A c c o r d i ng to F i r st R e s p o n d e n t, he f i r st k n ew of t h is j u d g m e nt by d e f a u lt on the 25th O c t o b e r, 1 9 9 3. He c l a i ms no a n s w e r i ng a f f i d a v it w as m a de b e c a u se M r. K h a s i pe his a t t o r n ey told him he w as n e g o t i a t i ng a s e t t l e m e n t. T he v e h i c le w h i ch is t he s u b j e ct of t h is a p p l i c a t i on (as a r e s u lt of t h at j u d g m e nt by d e f a u l t) is now in the A p p l i c a n ts p o s s e s s i on and is b e i ng u s ed as a t a xi M r. N a t h a ne ( c o u n s el for a p p l i c a n t) in reply to t he a l l e g a t i on t h at n e g o t i a t i o ns for a s e t t l e m e nt w e re in p r o g r e s s, in his a f f i d a v it d a t ed 16th J a n u a r y, 1 9 94 s a i d. "I deny my c l i e nt ever s u g g e s t ed a m e e t i ng The c o n v e r s e, w as b e t w e en the p a r t i es r a t h er the s i t u a t i on and I p r o m i s ed M r. K h a s i pe ( a p p l i c a n t 's c o u n s e l) that I w o u ld sell the idea to c l i e n t ," In the light of the a f o r e g o i n g, it is clear that F i r st R e s p o n d e nt is t e l l i ng the t r u th w h en he said his a t t o r n ey g a ve him the i m p r e s s i on t h at he had a p p r o a c h ed the o t h er s i de w i th a view to s e t t l i ng t h is m a t t e r. It is clear n e v e r t h e l e ss that his o wn a t t o r n ey let F i r st R e s p o n d e nt d o w n. R u le 27 of the High C o u rt R u l e s. 1 9 80 p r o v i d es t h at the R e s p o n d e nt may w i t h in 21 d a ys a f t er the j u d g m e nt has c o me to his k n o w l e d ge a p p ly to c o u rt (on n o t i ce to the o t h er s i d e) to set a s i de such j u d g m e n t. For the C o u rt to come to R e s p o n d e n t 's a s s i s t a n ce he m u st show good c a u se by g i v i ng a r e a s o n a b le e x p l a n a t i on of his d e f a u lt The c o u rt m u st be s a t i s f i ed that the a p p l i c a t i on is s e r i o u s ly m a de by a p e r s on who o u g ht to be heard b e c a u se he has a r e a s o n a b le d e f e n ce on the m e r i t s. It will not g r a nt the a p p l i c a t i on if it is s a t i s f i ed that g r a n t i ng the a p p l i c a t i on will be a w a s te of t i m e. It has n e v e r t h e l e ss to be r e m e m b e r ed that the c o u r ts a l w a ys feel o b l i g ed to hear b o th p a r t i e s. N e v e r t h e l e ss c o u r t 's will not r e a d i ly come to the a s s i s t a n ce of a party that wilfully neglects court's process and is grossly negligent. Kheola J, in Simon Makene v Metropolitan Homes Trust CIV/APN/278/88 (unreported) had occasion to deal with a situation in which a Respondent's attorney through a mistake or failure of some kind caused a judgment by default to be taken. He rescinded the judgment after saying ' "I am convinced that the applicant cannot be denied the relief it is applying for because its attorneys neglect cannot be imputed to it." Kheola J. further said'- "There are numerous cases which deal with the negligence of an attorney in failing to do certain things for his client .... One such case is Rose and Another v Alpha Secretaries Ltd 1947(4) S A 511 A. D. the headnote reads ae follows' a of an certain It is undesirable to attempt to frame a comprehensive test to the effect attorney's negligence .. . or to lay down that of negligence will debar client and another degree will not It is preferable to say the Court will consider all circumstances of a particular case .... in the exercise of its wide judicial sufficient discretion, degree that, c a u se b e en s h o wn " for g r a n t i ng r e l i ef h as I a g r ee w i th K h e o la J. b ut w i sh to add t h at it is very u n w i se not to s t i ck to the C o u rt R u l es in t he b e l i ef t h at the audi p a r t em r u le w i ll a l w a ys i n c l i ne the C o u rt t o w a r ds r e s c i n d i ng a d e f a u lt j u d g m e n t. A p p l y i ng for c o n d o n a t i on of b r e a c h es of t he r u l es of c o u rt c an be a r i s ky v e n t u re w h i ch o u g ht to be a v o i d e d. It is a c c e p t e d, t h e r e f o r e, t h at w h e re a d e f a u lt j u d g m e nt h as b e en t a k en t h r o u gh no f a u lt of a l i t i g a nt a r e s c i s s i on of j u d g m e nt is o f t en g r a n t e d. R e s c i s s i on of j u d g m e nt is n e v e r t h e l e ss a d i s c r e t i o n a ry m a t t e r. N e g l i g e n ce of an a t t o r n ey will n ot a l w a ys p e r s u a de the c o u rt to r e s c i nd j u d g m e n t. C u l p a b le r e m i s s i v e n e ss of a p a r ty ( w h i ch may a l so i n c l u de the a t t o r n e y 's n e g l i g e n c e) m i g ht be of a n a t u re t h at in t he p a r t i c u l ar c i r c u m s t a n c es of a c a s e, t he c o u rt m i g ht feel o b l i g ed to d i s m i ss an a p p l i c a t i on for r e s c i s s i on of j u d g m e nt E a ch c a se has to be d e a lt on its m e r i ts and the c o u r ts d i s c r e t i on (like all d i s c r e t i o ns of its t y p e) h as to be e x e r c i s ed j u d i c i a l l y. The c o u rt in d e a l i ng w i th a r e s c i s s i on of j u d g m e nt h as to d e t e r m i ne w h e t h er or not the F i r st R e s p o n d e nt has a bona fide defence If he does n o t, then the court ought to refuse to rescind the j u d g m e nt although it was granted through no fault of First R e s p o n d e n t. That being the c a s e, the court is obliged to go over the m e r i t s. In Sanderson Technitool (Pty) Ltd 1 9 8 0 ( 4) S. A. 576 at 576 Coetzee J. said the court does not delve too deeply into the merits Even if in the a p p l i c a t i on for rescission he has left some d e t a i l s, the court is entitled to a s s u m e, these might appear in his plea So long as the defence raised is not e x c i p i a b le and on the simple facts deposed t o, the matter cannot be decided finally as a matter of law, the court will be inclined to grant a r e s c i s s i on of j u d g m e n t. What is clear is that judgments on r e s c i s s i on are not always easy to reconcile because the c i r c u m s t a n c es of cases have a bearing in the exercise of the c o u r t s' decisions The courts in going over the m e r i ts often lean over b a c k w a r ds to a c c o m m o d a te a party against who a default judgment was g r a n t e d, because of the p r i n c i p le that both parties should be heard for justice to be seen to have been d o n e. In Grant v. P l u m b e rs (Pty) Ltd. 1 9 4 9 ( 2) S A. 4 70 the c o u rt r e s c i n d ed j u d g m e nt m o st r e l u c t a n t ly and s h o w ed its d i s p l e a s u re by an a p p r o p r i a te o r d er as to c o s t s. A c c o r d i ng to K e n n e dy J in N a i d oo v. C a v e b d u sh T r a n s p o rt ( P t y) Ltd 1956 (3) S. A. 2 44 at 248 all t h is r e s p o n d e nt has to do to show he has a b o na fide d e f e n ce i n .- " s e t t i ng a v e r m e n ts w h i c h, if e s t a b l i s h ed at the t r i a l, w o u ld e n t i t le him to the relief asked f o r. He need not deal fully w i th the m e r i ts of his c a s e, and p r o d u ce e v i d e n ce t h at p r o b a b i l i t i es his favour " are a c t u a l ly in The c o u rt on the f a c ts b e f o re it f i n ds that both p a r t i es are p u t t i ng all their t r o u b l es at the door of one E l i as M o k h o si from F i c k s b u rg in the R e p u b l ic of S o u th A f r i c a, A p p l i c a nt p a id a d e p o s it of a b o ut M 1 6 , 0 0 0 . 0 0. M o k h o si o b t a i n ed a loan w h i ch a p p l i c a nt was to pay d i r e c t ly to M o k h o s i 's b a n k. It s e e ms M o k h o si r e g i s t e r ed the v e h i c le in his o wn n a me in F i c k s b u rg in J a n u a r y, 1991 A p p l i c a nt r e g i s t e r ed the v e h i c le in A p p l i c a n t 's own name in S e p t e m b e r, 1 9 9 1. A p p l i c a nt c l a i ms he b o u g ht t h is v e h i c le in J u ne 1 9 9 0. T h e re are a few u n c l e ar f a c t s. One day in J u ne 1 9 9 2, E l i as M o k h o si took away the v e h i c le in the a b s e n ce of A p p l i c a n t. In September, 1993, applicant found this vehicle in the hands of First Respondent and he forcibly took it while First Respondent was trying to register it. The matter ended with the police who released it to First Respondent. Applicant again seized it and took it to the police. He appears to have moved court for an parte order which more fully appears on page two of this judgment. This is the order that was confirmed by default and in terms of which applicant gained possession of the vehicle. First Respondent on the face of the papers appears to have bought this vehicle in good faith from Mokhosi a year after Mokhosi took it way from Applicant. Mokhosi claims to have seized the vehicle because applicant had not paid the bank loan and was in arrears Mokhosi has annexed in the replying affidavit a letter dated May 1993 that shows the Applicant was three months in arrears This was eleven months after Mokhosi has seized the vehicle There is no doubt self-help is not allowed. On the face of the papers Applicant probably was not in arrears. There seems at this stage no grounds not to treat First R e s p o n d e nt as a bona fide purchaser who b o u g ht the vehicle from Mokhosi its registered owner It now has a different e n g i n e. There is no doubt that on the face of the papers First R e s p o n d e nt has a bona fide good d e f e n c e. The court is, t h e r e f o r e, obliged to rescind this j u d g m e n t. A p p l i c a n t 's case has many s i m i l a r i t i es to the case of Seth Lieta v. Semakale Lieta C. of A. (CIV) No.5 of 1987 ( u n r e p o r t e d) There the a p p e l l a nt from Lesotho had bought in Botswana a vehicle through R e s p o n d e n t, The reason for this was that R e s p o n d e nt was a Botswana citizen and could be given credit in B o t s w a n a. This vehicle was registered in Botswana and promptly taken to Lesotho by a p p e l l a n t. One day R e s p o n d e nt brought an urgent a p p l i c a t i on in Lesotho claiming the vehicle because he was its registered o w n e r. There were conflicts of fact and viva voce evidence was heard. The Court of Appeal upheld right of p o s s e s s i on of the Lesotho party that had b o u g ht a vehicle in Botswana through a Botswana c i t i z e n. There is no doubt this matter is urgent and consequently it was proper for the vehicle to be kept somewhere p e n d e n te lite. The nature of the contract between applicant and Mokhosi is not clear from the p a p e r s. The rights of the bona fide purchaser are protected by law. The court is not obliged to go into the merits at this stage. It can only alert the parties to the danger of o v e r - c o n f i d e n c e. It seems to the court in the circumstances best for all parties concerned that the vehicle be returned to the Deputy Sheriff for safe keeping pending the finalisation of this application. This disposes of CIV/APN/510/93 Nevertheless some one must pay costs up to now and it is First Respondent Kose Joshua Mafereka who must. Negligence of his former attorney does not absolve him in this respect. The court makes the following o r d e r :- (a) Rescission of judgment is granted t he a nd Respondent/Applicant (Kosi Joshua M a f e r e k a) pay costs of these proceedings up to this stage. is directed F i r st to (b) The Rule Nisi is revived First Respondent and extended to the 21st February, 1 9 9 4. (Kosi Joshua M a f e r e k a) is directed to see to opposing affidavits are filed by the 15th February, 1994. it that his (c) The court orders Tlali Lefeta the to Applicant/First return the vehicle to the Deputy Sheriff who is Second Respondent in this matter for safe keeping pending the finalisation of this application Respondent W. C. M. MAQUTU ACTING JUDGE 26th January, 1994 For Applicant : Mr. Nathane For R e s p o n d e n t: M r. Khasipe