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Maroba v Moinga and Another (Civil Appeal No. 33 of 1995) [1996] BWCA 12 (1 February 1996)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 33 OF 1995 [HIGH COURT CIVIL CASE NO. 217 OF 1994]
In the matter between:
NANIKIE MAROBA [Assisted by Samson Maroba
being Applicant's lawful husband]        Appellant
and
1st Respondent 2nd Respondent
LEBOTSANG MOINGA DEPUTY SHERIFF SEBEELA
B.D. Leburu for the Appellant G. Kanjabanga for Respondents
JUDGMENT
CORAM:   T.A. AGUDA, J.A.
P.H. TEBBUTT, J.A. G.G. HOEXTER, J.A.
TEBBUTT JA.:
On 8 February 1994 1st Respondent issued summons against the Appellant's husband,to whom I shall refer as Maroba, in which he claimed damages from Maroba in his representative capacity as husband of Appellant, to whom he is married in community of property. The claim was for the sum of P30 000 arising from certain defamatory words allegedly uttered during the course of proceedings in the Mogoditshane Customary Court by Appellant about the 1st Respondent's wife, to whom 1st Respondent was married in community of property and who brought the action also

2 in his representative capacity. The summons and particulars of
claim were served on 14 February 1994 on Maroba's brother at
Maroba's place of residence. Maroba failed to enter appearance
to defend and on 16 March 1994 an interlocutory judgment by
default was granted in the High Court against Maroba, with
damages to be assessed. On 29 March 1994 first respondent's
Attorney filed a notice of motion applying for an order that the
damages be assessed by the Registrar of the High Court. It is
important to note that by that date Attorneys Moupo, Motswagole
and Dingake were apparently acting on Maroba's behalf and service
of the notice of motion was effected on them at 9:46 am on 29
March 1994. The application was heard on 15 April 1994 and was
not opposed. The Registrar, pursuant to the order granted on
that day, proceeded to hear evidence by 1st Respondent's wife on
the quantum of damages and on 3 0 May 1994 assessed them in the
sum of P27 500. He also assessed costs at PI 500, making a total
assessment of P29 000. On 8 June 1994 an application on notice
of motion was made on 1st Respondent's behalf to have the
interlocutory judgment, with the damages assessed by the
Registrar, made final. That application was also served on
Maroba's aforementioned Attorneys. Again there was no opposition
to the application which was granted by Horwitz J. against Maroba
on 24 June 1994. A writ of execution was issued pursuant thereto

3 and certain items were in due course attached by the Deputy
Sheriff, who is the 2nd Respondent.

On 9 February 1995 the Appellant applied on notice of motion for an order rescinding the judgment granted on 24 June 1994. She also applied to have the writ of execution set aside and for the release of the items attached by the Deputy Sheriff. The application which was opposed by 1st Respondent, was dismissed with costs by Barrington-Jones J. Appellant appealed against that decision to this Court. When the appeal was heard this Court dismissed it with costs, stating that it would give the reasons for doing so later. These are the reasons:
Order 31, Rule 13 of the Rules of the High Court, provides that the Court may rescind a judgment given in default and grant leave to the Defendant to defend but that such leave shall only be given "on good and sufficient cause" [Rule 13 [2] ] . It has frequently been stated both in the Courts of Botswana and in South Africa, where there is a similar Rule of Court, that the first requirement for a party seeking to have a default judgment set aside on good and sufficient cause, Imust give a reasonable and acceptable explanation for his default. [See e.g. GRANT V PLUMBERS TPTY1 LTD 1949 [21 SA 470 [01 AT 476-477; CHETTY V LAW SOCIETY. TRANSVAAL 1985 [21 SA 756 A: BRITISH AUTO BOTSWANA [PTY1

4
at 456 F - 457 A and cases there cited] . The onus is on the
Applicant for rescission to satisfy the Court that there is a
reasonably satisfactory explanation why the judgment was allowed
to go by default. [See DE WET AND OTHERS V WESTERN BANK LTD 197 9
T21 SA 103 TA1 AT 1042 Hi .
In her founding affidavit in support of the application for
rescission - and I draw attention to the fact that it is the
Appellant and not Maroba who seeks to set aside the judgment
which was given against him - the Appellant said this:
"When defendant was served with the summons at around the end of March 1994, the defendant, my husband, who is being sued for what is alleged to have been committed by myself, immediately left for military duties and/or exercises at Kanye. The defendant was therefore unable to immediately take charge of the matter."
She went on to say that a friend, to whom she had handed the
summons, after her husband had allegedly left for Kanye, to help
her find an attorney had told her that she should see Mr. Moupo
of the Attorneys firm Moupo, Motswagole and Dingake. Mr. Moupo
told her that since the summons was against her husband as the
Defendant in his capacity as her legal guardian, he would have
to sign a Power of Attorney to appoint the attorneys to represent
him. She went on to say the following:
"When the defendant my husband returned from Kanye he was sent on military duties to Mozambique. He was absent from the whole period that the action by respondent continued. He did

5
not return until late December last year and as such could not take charge of his defence."
Appellant's affidavit, apart from lacking in candour, is also patently untruthful in certain respects. In the first place, her averment that her husband was served with the summons "at around the end of March 1994" is false. Service was effected on Maroba's brother at Maroba's place of residence, while he was obviously staying there, on 14 February 1994. If Maroba's brother had only handed him the summons more than a month later, one would have expected Maroba and the brother to say so. Her averment is, however, clearly false for another reason. Service of the notice of motion in respect of the assessment of damages by the Registrar was served on Attorneys Moupo, Motswagole and Dingake on 29 March 1994. It is obvious from that fact that not only had she or Maroba already consulted Mr. Moupo by that time but that Mr. Moupo or she must have told 1st Respondent's Attorneys that they were acting on Maroba's behalf for how else would those Attorneys have known that they should serve the papers on Mr. Moupo's firm? I, therefore, do not believe her when she says that neither she nor her husband had given a valid Power of Attorney to Mr. Moupo. If it was she who told 1st Respondent's Attorneys to serve any papers on Mr. Moupo's firm then she is lying when she says that Mr. Moupo told her that only

6
her husband and not she could give them a Power of Attorney.
If it was Mr. Moupo who did so, then it is unthinkable that one attorney would tell another that he would accept service of process against someone from whom he had no mandate or for whom he was not acting. It is highly significant in this regard that the Appellant filed no affidavit from Mr. Moupo in support of her averments in regard to him or fefee explanation of how he came to accept service of the process in not only one application against Maroba but in two of them. Appellant and Maroba furthermore have been singularly vague and evasive as to when exactly Maroba left Mogoditshane for Kanye, how long he was there and how long he was at home after his return from Kanye and before he went to Mozambique. No explanation is given as to why Maroba could not have attended to the matter either during the latter period or before his departure for Kanye, by which time, on Appellant's own affidavit, he knew of the action pending against him. It is moreover, in my view highly unlikely that Mr. Moupo or someone in his firm would not have communicated with either Appellant or her husband after the service on them of the process in the two applications mentioned. Mr. Moupo's silence in the application presently under consideration, in my view, supports the probability that either he or his firm did so.
Finally, I must draw attention to the fact that although the

7 interlocutory judgment was obtained on 16 March 1994 and the
final judgment on 24 June 1994, neither Maroba or Appellant took
any steps to have it set aside until 9 February 1995 by which
time the Deputy Sheriff had attached the items he did in
pursuance of the writ of execution. It was obviously this
circumstance that gave rise to Appellant's application for
rescission. She has, however, in my view given no reasonably
satisfactory explanation for the delay in bringing it.
Barrington-Jones J. found that to be the case. I agree with him.
She did not,therefore, overcome the first hurdle in seeking to
show good and sufficient cause why the judgment of Horwitz J. of
24 June 1994 should be set aside. Barrington-Jones J. was
accordingly correct in refusing the application to do so. It was
for these reasons that the appeal was accordingly dismissed, with
costs.
DELIVERED IN OPEN COURT AT LOBATSE THIS DAY OF FEBRUARY, 1996.

P.H. TEBBUTT [JUDGE OF APPEAL]

I agree:
T. A AGUDA [JUDGE OF APPEAL]


I agree:
G.G. HOEXTER [JUDGE OF APPEAL

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