Project Authority for Self Reliance Project and Another v Makhahe (CIAPN 268 of 91) [1991] LSCA 151 (2 December 1991)

-1- CIAPN\268\91 IN THE HIGH COURT OF LESOTHO In the matter between:- PROJECT AUTHORITY FOR SELF RELIANCE PROJECT THE PROJECT DIRECTOR FOR TRAINING 1st Applicant FOR SELF RELIANCE PROJECT 2nd Applicant and ANGELINA THEEPE MAKHAHE Respondent J U D G M E NT Delivered by the Honourable Mr. Justice J. L. Kheola on the 2nd day of December, 1991. On the 4th September, 1991 the applicant obtained an order for the stay of execution of the default judgment granted in CIV\APN\256B\91 pending finalisation of this application; rescission of the default judgment above and coats of suit. The facts of this case are that on the 28th August, 1991 the second applicant received, on behalf of the first applicant, process in CIV\APN\2568\91. After consultation with the first applicant it was resolved that the matter be opposed and the second applicant was authorized to sign all the necessary papers in relation -2- to the opposition . He was authorized to approach the Law Office as the legal representative of the first applicant. He duly instructed the Law Office to oppose the application. However, it seems that the Law Office took no action and on the 3rd September, 1991 the respondent obtained a default judgment. The second applicant avers that the first applicant has a bona fide defence and that the default judgment was granted as a result of an oversight on the part of the Counsel who is handling the matter, and certainly not as a result of any wilful default or negligence on the part of the applicants. He avers that the respondent's contract with the applicants expired on the 31st March, 1991 and a new contract for a period of three months was entered into. It expired on the 30th June, 1991. The respondent's claim is that she ought to have been offered a longer period like the others with whom she worked. The second applicant avers that as such CIV\APN256B\91 discloses no legal grounds upon which relief could be granted. In his supporting affidavit Mr. Tsokolo Mohapi avers that he is a Crown Counsel and counsel of record in CIV\APN\256B\91. He was duly instructed by the -3- applicants to oppose the above application but due to an oversight on his part regarding the dies induciae, he wrongly and mistakenly assumed that the applicants had been given seven (7) days within which to file their notice of intention to oppose. He avers that he simply glanced through the Notice of Motion and even failed to realise that actually the seven {7) days he had in mind were a period within which to file an answering affidavit. He avers that his instructions by his client were very clear that the application must be opposed. Mr. Nthethe, attorney for the respondent submitted that Mr. Mohapi's attitude amounted to gross negligence, in the premises the Court should not come to his assistance (Grant v. Plumbers (Pty) Ltd., 1949 (2) S. A. 470). The applicant must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence, the Court should not come to his assistance. In the case of Thlobelo v. Kehiloe (2) 1932 O. P. D. 24 De Villiers, J. P. held that the Court could grant relief where the mora in prosecuting the appeal is due to the attorney's negligence, unless that negligence has reached such a degree of culpability as in the opinion of the Court to debar his client from relief. -4- In Rose and another v. Alpha Secretaries Ltd., 1947 (4) S. A. 511 at p. 518 Tindall, J. A. said; "In regard to the matter of degree of negligence on the part of the attorney it is, in my opinion, unnecessary to decide whether it is correct to say that the greater the degree of such negligence, the greater is the likelihood that such negligence will debar his client from relief. I do not know whether the reason underlying such a proposition is that if the omission on the part of the attorney is such that it will render him liable to his client for damages caused by the lapsing of an appeal which would have succeeded, the client is not without all redress but can obtain it by suing his attorney. Apart from the question whether, once the omission amount to negligence, the degree of such negligence affects the client's claim to damages against his attorney, I am of opinion that it would be unsound to give a general ruling that where the omission is such that it renders the attorney liable to his client, the client should have resort to such redress and should not be granted relief under Rule 12. Such a ruling might result in great injustice as, for example, where the attorney is not able to satisfy a judgment for the damages awarded against him. How is the Court to know, when it refuses relief to an applicant on the ground of his attorney's negligence, that if the client sues his attorney and gets judgment for such damages, the attorney will be able to pay the damages? It seems to me undesirable to attempt to frame a comprehensive test as to the -5- effect of an attorney's negligence on his client'a prospects of obtaining relief under Rule 12 or to lay down that a certain degree of negligence will debar the client and It is another degree will not. preferable to say that the Court will consider all the circumstances of the particular case in deciding whether the applicant has shown something which justifies the Court in holding, in the exercise of its wide judicial discretion, that sufficient cause for granting relief has been shown." I entirely agree with the learned Judge of Appeal. In the present case the negligence or gross negligence of the applicants' attorney cannot be attributed to the applicant in any way. The attorney was given instructions to oppose the main application on the 29th August, 1991. He merely had a glance at the papers and drew wrong conclusions about the periods within which he was expected to take steps in terms of the Rules. On the 2nd September, 1991 a default judgment was granted because the applicants' attorney did not file any notice of intention to oppose the application. In other words, the default judgment was obtained within five days of service of the Notice of Motion upon the applicant and his attorney. I have already exonerated the applicants for the simple reason that they gave proper instructions to their -6- attorney to oppose the application and cannot be blamed for their attorney's failure to do his work properly. In Saloojee and another MNO v. Minister of Community Development, 1965 (2) S. A. 135 (A. D.) at p. 141 Steyn, C. J. said: . . . Considerations ad an become invitation "It has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered misericordiam should not be allowed to to laxity....if.... the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder his or attorney... and expect to be exonerated of all blame; and if... the explanation offered to his court is patently insufficient, he cannot be heard the to claim insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his own. attorney, he should at least explain that none of it is to be imputed to himself." inquiry that to In the present case the question of protracted delay -7- does not arise. The default judgment was obtained within hardly five days after service of the Notice of Motion upon the applicants. With regard to the attorney's negligence I have serious doubts whether it can reasonably be concluded that he was grossly negligent. It cannot be said that he received his client's papers and put them in a tray and forget about them for a week or several weeks or for months without attending to them. He says he had a quick glance at the papers and saw that within seven days he was to file a notice of intention to oppose. He was obviously mistaken and was negligent not to check his client's papers thoroughly. I come to the conclusion that he was negligent but his negligence had not reached such a degree of culpability as in my opinion should debar his client from the relief. It has been submitted on behalf of the respondent that the applicant must show that he has a bona fide to plaintiff's claim. It is sufficient if he makes a prima facie defence in the sense of setting out averments which if established at the trial would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour. The applicants -8- allege that they have a bona fide defence in that there is no contract between them and the respondent. The only contract they had with her expired at the end of June, 1991. What the respondent avers is that she ought to have been offered a longer contract similar to the contracts offered to the other people with whom she worked. I am of the view that if the applicants can establish these averments at the trial, it could be said that they have a bona fide defence. On the other hand the respondent alleges that according to the Memorandum of Revised Terms and Conditions of Service for Training for Self Reliance Project Personnel, there are only three types of contract appointment forms in TSRP, namely: (a) daily-paid contract form (b) hourly-paid contract form and (c) annual or longer contract form. She claims that her contract falls under (c) above. This is an issue that can be well dealt with at a trial because if the respondent accepted a three-month contract, she cannot later complain that she was not offered the usual contract. -9- Considering all the circumstances of this case I am of the view that this is a proper case in which the applicant should not be denied the relief sought. In the result the application is granted. Costs shall be costs in the cause. J. L. KHEOLA JUDGE 2nd December, 1991. For Applicants - Mr. Mohapi For Respondent - Mr. Nthethe.