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Mathabela and Another v Mogobe and Others (Civil Appeal No. 37 of 1995) [1996] BWCA 55; [1996] B.L.R. 750 (CA) (19 July 1996)

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1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 37/95
HIGH COURT CIVIL CASE NO. 1651/93

In the matter between:
THANDI FRANCINAH MATHABELA A. MONYATSI
and
K.M. MOGOBE P. MOGOMOTSI P. SABATA V. TSIE J. MBATISI J.M. PULE E. DUBE
Mr. C. Dahanayake for the 1st Appellant
Mr. A. Monyatsi In Person
Mr. M.L. Mogobe for the Respondents
1st Appellant 2nd Appellant
1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent 7th Respondent

JUDGMENT
CORAM :\  AGUDA, J. A.
TEBBUTT, J.A. LORD COWIE, J.A.
LORD COWIE J.A. ;
This is an appeal against a decision of the High Court dated 10th August 1995 dismissing an application for a stay of execution and rescission of a default judgment.
The first Appellant who brings these proceedings in forma pauperis seeks the following relief from this Court:
 (a)     Setting aside the judgment of the Court a quo in above matter dated 10th August 1995.
 (b)     Granting 1st and 2nd Appellants stay of Writ

2 of Execution in the above matter.

(c)    
Granting a rescission of judgment in Civil Cause No. 1651 of 1993 and granting Applicant the right to defend.
 (d)    
Further and/or alternative relief.
Reference to the 2nd Appellant in paragraph (b) above is inappropriate because although Mr. Monyatsi signed a Notice of Appeal, he filed no heads of argument or did anything else to pursue the appeal and only appeared at these proceedings because he was informed that they were taking place. When he was invited to address us, he made no significant contribution to the discussion and to all intents and purposes can be ignored in relation to this appeal, although I will have something to say about his position when I have dealt with the first Appellant's case.
The history of the case is as follows:-
The Respondents in this Court and in the Court below issued a writ of Summons in the Magistrates Court at Gaborone on 8th June 1993 claiming that a number of defendants, among whom was the first Appellant, were liable to pay the sum of P7159.80 in respect of an alleged agreement to employ a firm of Security Guards at the Old Naledi Market in Gaborone. This sum was restricted to P5000 in order to keep the claim within the jurisdiction of the Magistrates Court. None of the defendants entered appearance to that Summons. That summons was withdrawn

3 on 20th October 1993. Unfortunately the Notice of Withdrawal which was sent to all the defendants including the first Appellant and which was filed in the Magistrates Court contained a typographical error indicating that it was directed to the High Court instead of the Magistrates Court.
I mention this matter at this point, because much was made of it by the Applicants in the Court a quo when seeking the stay of execution and the rescission of the default judgment, but it only had a peripheral importance in the submissions before us. The point made was that the withdrawal of the Magistrates' Court action might have given the impression that the whole claim was being abandoned and that no further action on the part of the first Appellant was required. This will not do, partly because no appearance was entered, even for the Magistrates' Court action, and, in any event, a completely new writ of summons was issued in the High Court on 28th October 1993 and served on a representative of the first Appellant at her place of business on 3rd December 1993. No appearance was entered by the first Appellant in respect of that Summons. On 25th January 1994 Notice was given by the present Respondents that application was being made under Order 30 of the High Court Rules for judgment in default of appearance. That Notice was filed on 7th February, 1994. On 23rd February 1994 default judgment in terms of Order 30 was granted, along with a Writ of execution. On 14th April 1994 a Notice of Motion was issued by the defendants including the present first Appellant for an Order calling on the Respondents to show cause why the said writ of execution should

4 not be stayed pending the finalisation of the application for rescission of the default judgment of 23rd February 1994. It was maintained in the Notice of Motion that this was a matter of urgency requiring the setting aside of the normal Rules of Court as to service and form. A Rule nisi was issued on 15th February 1994 with a returnable date on the 29th April 1994 in relation to the Notice of Motion. In fact the matter was postponed and the Rule extended several times until it was eventually argued on 2nd May 1995. On 10th August 1995 the Judge a quo dismissed the Application for stay of execution and rescission of the default judgment. It is against that judgment of 10th August that the present appeal is taken. Notice of Appeal was filed on 20th September 1995 and the grounds of appeal and relief sought were as follows:-
"GROUNDS OF APPEAL
(a)    
The Court a quo erred in making a finding that 1st Appellant's affidavit does not give a reasonable explanation of her default in entering appearance to defend in view of averments contained in both her founding and replying affidavits.
(b)    
The Court a quo erred in making a finding of fact that 1st Applicant did not show that she made her application in good faith and not with intention of delaying the Respondents' claim and that the Court had not been given any explanation why there was a lapse of 16 months before the Application

5 was heard.
(c)    
The Court a quo erred in making a finding of fact that 1st Applicant failed to show that she had a bona fide defence to Respondents' claim when in both her founding and replying affidavits averments were made denying entering into a contract to hire Wayguard Security for the services of the parties stalls.
(d)    
The Court a quo erred in accepting copies of receipts of payments (Annexures "1" to "6") by L. B. Kompo and Mrs. E. Mbaakanye purportedly on behalf of one M. Sebinyane as conclusive proof that Applicants' entered into agreement with Respondents to hire or engage the firm of Wayguard Security when M. Sebinyane is not even a party to the action either as Plaintiff or Defendant and was rightly struck off as a party to the action.
Relief sought from the Court of Appeal
(a)    
Setting aside the judgment of the Court a quo in above matter dated 10th day of August, 1995.
(b)    
Granting 1st and 2nd Appellants' stay of Writ of Execution in above matter.
(c)    
Granting a rescission of judgment in Civil Cause No. 1651 of 1993 and granting Applicant the right to defend.

6
(d) Further and/or alternative relief.
In order to set aside a default judgment an Applicant has to show "good and sufficient cause" in terms of Order 31 Rule 13 (2) of the Rules of the High Court (Cap 04:02). The words "good and sufficient cause" in this context have been explained in numerous cases but for the purposes of this Appeal, it is enough to refer to the opinion of Livesey Luke C.J. in the case of LAHRI v. BOTSWANA LIQUOR MANUFACTURERS (PTY) LTD and ANOTHER 1988 BLR 361 at p. 366 where he says:-
"Having considered the wording of the rule and the relevant authorities, I am of the opinion, that the requirements for satisfying "good and sufficient cause" under the rule is as follows:-(i) The applicant must give a reasonable explanation of his default. (ii) The application must be bona fide and not made with the intention of merely delaying the plaintiff's claim, (iii) The applicant must show that he has a bona fide defence to the plaintiff's claim."
The learned Judge a quo in applying those requirements to the first Appellant's application decided that she fell at the first

7 hurdle and that it was unnecessary to deal with the other two requirements in any detail. In my opinion he was entirely justified in taking that view. No reasonable explanation was put before the Judge a quo for the first Appellant's failure to enter appearance to the High Court writ of Summons and he was accordingly entitled to dismiss the application. In some respects there were even stronger grounds for arriving at the same conclusion in this Court. The salient features are as follows:-
The first Appellant never entered appearance to the Writ of Summons in the Magistrates Court. That action was duly withdrawn and a fresh Writ of Summons was issued in the High Court. It was served on her sister at her place of work on 3rd December 1993 according to the Return of Service which is at page 57 of the Record. The first Appellant disputes that the Writ was served on her sister and states in her founding affidavit paragraph 13 at page 82 of the Record, that,
"The Summons under Case No. CC.1651/93 was not served on me personally but my attendant employee being Olefile Ramphe as I was away in Zambia, Republic of South Africa and Bophuthatswana for medical treatment (as will be seen from my Passport Extracts, annexures "E2" to "E9")."
In my opinion, it makes no difference whether it was served on her sister or her employee Olefile Ramphe. The significant point

8 in this connection is that it was served on someone at the first Appellant's place of work, and according to the Return of Service it was explained to that person what the nature and exigency of the writ was, and that that person agreed to hand the "same process" (presumably the writ) to the defendant. Furthermore far from showing that the first Appellant was out of the country on 3rd December 1993 the extracts from her passport which she produced show that she entered Botswana at Kazungula Border Post on 2nd December 1993 and only departed for Bophuthatswana on 5th December 1993. Accordingly the clear inference is that she must have been in Botswana on 3rd December 1993 when the Writ of Summons was served on someone at her place of work. It is to my mind inconceivable that that person would not have handed the document on to the first Appellant, as she had agreed to do. Indeed there is some support for the view that the Writ was handed to her in the first Appellant's Affidavit, where she says at paragraph 17 on page 83 of the Record -
"At this time (25th March 1994) I hazily recalled that Olefile Ramphe had at one stage given me a copy of the Summons but I could not do anything about it as I was seriously ill."
The difficulty about this explanation for the first Appellant's failure to enter appearance is summarised by the learned Judge a quo when he says at page 35 of the Record:-
"Mathabela says she could not do

9 anything since she was ill. The nature of the sickness is such that she could travel in and out of the country. She does not allege though that she was so seriously bedridden as not to understand the import of a document such as a summons nor yet still does she ably (sic) tell the Court the dates when such a document was handed to her. "
In my opinion the matter goes further than that, I consider that the first Appellant was in Botswana on the date the writ was served; that it is a fair inference that whoever received the Writ handed it to the first Appellant at or about that time; and that the first Appellant was not so ill that she could not do anything about it. In so far as I can see, the Medical Records produced at page 166 and 167 of the Record do not support the contention that she was seriously ill at that time. Like the learned Judge a quo I can find no reasonable explanation for the first Appellant's failure to enter Notice of Appearance to the Respondent's Writ of Summons and accordingly I can find no good and sufficient cause for setting aside the default judgment or the Writ of execution which followed on it.
In all these circumstances I would dismiss the appeal with costs

10
to the Respondents.
So far as Mr. Monyatsi is concerned, as I have indicated, he was not a party to this appeal and only attended at this court because it was being heard at this time. Clearly the default judgment and writ of execution are still in force against him, but he is a simple man, and so far as I can tell, without substantial means. In these circumstances the Court asked Mr. Mogobe, Counsel for the Respondents, if he was prepared to advise his clients not to proceed against Mr. Monyatsi. Mr. Mogobe assured us that he would do his best to persuade his clients to that effect, and that is as far as this Court can take the matter. We sincerely hope that the Respondents will take Mr. Mogobe's advice and that Mr. Monyatsi will not be put to further trouble or expense in relation to this action.
Delivered in open court at Lobatse on 19th July, 1996.

I agree.
I agree.
LORD W.L.K. COWIE JUDGE OF APPEAL
 T. A. AGUDA JUDGE OF APPEAL
P.H. TEBBUTT JUDGE OF APPEAL

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