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Tex (Pty) Ltd v Manica Botswana (Civil Appeal No. 45 of 1996) [1997] BWCA 27; [1997] B.L.R. 795 (CA) (25 July 1997)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Civil Appeal No. 45 of 1996 High Court Civil Case No. 1538 of 1995
In the matter of:
TEX (PTY) LTD.   Appellant
and
MANICA BOTSWANA  Respondent
Adv. J. Cherry for the Appellant
Mr. J. Carr-Hartley for the Respondent
JUDGMENT
Coram: Schreiner, J.A. Tebbutt, J.A. Lord Cowie, J.A.
LORD COWIE, J.A.:
The Appellant appeals against a decision of the High Court in which it refused an application to rescind a Default Judgment granted against the Appellant at the instance of the Respondent on 15th October 1996.
The facts are as follows.--
The Respondent issued a summons against the Appellant on 17th August 1995 in which it claimed the sum of P85,666.68 with interest and costs. The summons was served personally on the Appellant's Financial and Commercial Manager, Mr. Lalit Badlani on 29th August 1995. The Appellant through Mr. Badlani immediately instructed the Appellant's Attorneys O.G.B. Marata and Partners, which firm, notwithstanding the name, was a one man business run by Mr. Marata himself. The Appellant provided Mr. Marata with a Resolution to Defend the action and authorised Mr. Badlani to sign all the documents in relation to the action on

2 behalf of the Appellant. The Appellant also issued a Power of Attorney to Mr. Marata to defend the action. On 25th September 1995, Mr. Marata filed the Resolution to Defend and the Power of Attorney in the High Court, but through an error on his part Mr. Marata failed to file the Appearance to Defend, or to serve such an Appearance on the Respondent's Attorneys.
On 12th October 1995, Default Judgment was granted against the Appellant with costs of P350.00 and the Warrant of Execution sent to the Deputy Sheriff.
On 26th October Mr. Badlani heard for the first time that Default Judgment had been granted against the Appellant. He immediately informed Mr. Marata, who wrote to the Appellant's Attorneys on 7th November 1995 stating that the failure to file an Appearance to Defend or to serve it on the Appellant's Attorneys was a grave oversight on his part, because his client had always intended to defend the action. He craved the indulgence of the Respondent's Attorneys, and requested them to abandon the Default Judgment in terms of Order 47(2) of the High Court Rules on certain conditions, namely:-
(a)    
that the Appellant pay the costs granted of P350.00, and
(b)    
that the Appellant files both the Appearance to Defend and its Plea immediately.
On 8th November the Respondent's Attorneys faxed a letter
to Mr. Marata in the following terms:-
"Re: MANICA BOTSWANA (PTY) LTD/TEX (PTY) LTD
We acknowledge receipt of your fax of 7th November 1995, contents whereof have been noted.
We have referred the matter to our client

3
for their instructions.
I must point out that in the event client agrees to abandon its Judgment, we would require that it be on the following terms:
1.     
Your client pay our client's wasted costs on the attorney and client scale;
2.     
That your client pay the Deputy Sheriff's charges and commission on withdrawal of the attachment;
3.     
That your client serve and file its Appearance and Plea immediately.
Nothing short of the above will be considered.
We will revert to you when we have received instructions from our client."
Mr. Carr-Hartley who was acting in this matter for ti--Respondent went on leave at the end of November 1995 and did n .?? return until the beginning of the New Year. When he returned : the office in January 1996 he immediately advised Mr. Marata ti. ;-he had not yet received instructions from the Responden- . Although that letter is not in the Record, Mr. Carr-Hart; • informed us that that was the position at that time, and :?:-. . Marata confirms it in his Affidavit of 5th June 1996 at parag: ?.-..: 9.
Nothing more happened until 2 0th February 1996 when ! Respondent's Attorneys wrote to Mr. Marata stating that t':.?•:: client had instructed them to inform him that the Respondent not prepared to abandon the Default Judgment and that Mr. M-.: should make an Application for Rescission of Judgment.
On 7th March 1996, Mr. Marata wrote to the Respond:.- ? .3
Attorneys in the following terms:-
"We expect to serve the rescission papers on yourselves by the 13/14 March 1996. I have

4
virtually been out of the office and will only be in the week beginning the 11th."
Nothing more happened until 12th April 1996 when the
Respondent's Attorneys wrote to Mr. Marata in the following
terms:-
"MANICA BOTSWANA (PTY) LTD/TEX (PTY) LTD
We refer to the above matter and your letter of 7th March, 1996.
We have still not received your client's application for Recission of Judgment.
Kindly be advised that in the event we do not receive same within 14 days of date hereof we are instructing the Deputy Sheriff to execute the Writ against your client and any application for Recission of Judgment received thereafter will be vigorously opposed."
There was no response to that letter and accordingly on 23: i
May 1996 the Respondent's Attorneys instructed the Deputy Sheri::
to confirm the prior attachment of 24th October 1995, and remc:-'
the attached goods, which at the Appellant's request had not b--?:.
removed pending the Appellant's expected Application f .:
Rescission. As a result of this development, on 6th June, 1 ?• •
the Appellant applied for the rescission of the Default Judgm--::•
as a matter of urgency and sought a Rule Nisi, returnable on :.:.••
June 1996, calling on the Respondent to show cause, if any, wi.v .
"(a) The Default Judgment entered by the Registrar of this Honourable Court and dated the 12th day of October 1995 should not be set aside and rescinded in terms of Order 31 Rule 13(1) and (2) ;
(b)    
The Applicant should not be allowed to file its plea or other answer in Case No. CC 1538/95;
(c)    
Leave should not be given to the Applicant to defend the action,-

5
(d)    
The Respondent should not be restrained from continuing or effecting any execution pursuant to such judgment;
(e)    
This Order operate as an interim interdict, restraining the Respondent from advertising the sale or going ahead with the execution;

3.     
The Respondent be and is hereby granted leave to anticipate the return day on not less than 72 hours written notice to the Applicant's Attorneys of Record;
4.     
The Respondent should show cause, if any, on the 21st day of June 1996 why this Order should not be made final."
Affidavits were filed by Mr. Badlani and Mr. Marata in support of the Application for rescission as were answering Affidavits by a representative of the Respondent and Mr. Carr-Hartley. It was clear from the latter Affidavit that the Respondent was founding strongly on the delay in applying for a rescission of the Default Judgment when opposing the Application and although Mr. Marata had tried to explain in his original Affidavit that the delay had been due to his illness, he considered it necessary to depose to a further Affidavit dated 23rd August 1996 elaborating on that matter and attaching to it a medical certificate.
Unfortunately for Mr. Marata and the Appellant that medical certificate was not filed before the hearing of the Application nor was a copy of it served on the Respondent's Attorneys since the parties had agreed that the Application should be decided on the papers which had been filed and without the benefit of oral argument. Accordingly when the Application came before the Judge a quo he did not have the medical certificate before him. He simply refused the Application on the papers before him as

6 agreed. This was on 15th October 1996. I mention this matter because when this Appeal from the decision of the Judge a quo came before us there was an Application to adduce further evidence consisting in particular of the medical certificate dated 11th March 1996 which is on page 102 of the Record. In the event the Application was not opposed and so the medical certificate now forms part of the Record for our consideration. Following on the decision of the Judge a quo to refuse the Application on the ground that there was no good and sufficient cause for the delay in seeking rescission of the Default Judgment, this appeal was noted on the following grounds:-"Grounds of Appeal
a)     
The Learned Judge misdirected himself in finding that the client had not taken all reasonable steps to expedite the matter by communications with the Attorney who was dealing with the matter.
b)     
The Court should have found from the facts that the Attorney dealing with the matter, due to circumstances beyond his control and for reasons deposed to in the papers, was unable to expeditiously and timeously act on the instruction of his client.
c)     
That this was an inappropriate case to visit the sins of the Attorney upon the client.
d)     
The Court erred in allowing the drastic remedy of default judgment to stand in this matter where there were good and sufficient grounds for the delay in entering an appearance and filing a Plea.
PARAGRAPH 4
RELIEF SOUGHT FROM THE COURT OF APPEAL.
a) The judgment of Gittings J. be set aside.

b)     
That leave be given to the Appellant to defend the action in Matter number CC 1538/95.
c)     
That the Appellant be given 14 days from the Order of this Court to file a Plea or other answer in the said case.
d)     
That the Respondent pay the costs of the Appeal and those in the Court below."
It will be seen therefore that in essence this appeal is
based on the submission that the learned Judge a quo erred in
holding that the Appellant had not given a reasonable explanation
for his default and had placed too much weight on the Appellant's
own apparent failure to communicate adequately with Mr. Marata.
In considering these matters the additional evidence of the
Medical Certificate has to be taken into account by this Court.
In his commendably succinct and persuasive argument Mr. Cherry for the Appellant accepted that in this jurisdiction a litigant seeking a rescission of a Default Judgment had to establish not only a reasonable explanation for the default, but also that his application for rescission was bona fide and not prompted by a desire to delay the proceedings and that he had a bona fide defence to the Respondent's claim. (See ABT Mathope v Lobatse Town Council Civil Trial No. 293 of 1979).
However his task was eased to some extent by the fact that Mr. Carr-Hartley for the Respondent very properly conceded that if the Appellant was able to overcome the first hurdle by satisfying us that a reasonable explanation for the default had been given, the Appellant ought to be allowed to defend the principal action.
Notwithstanding that concession Mr. Cherry acknowledged that

8 in this case the first hurdle amounted to a formidable obstacle for the Appellant.

While it was common cause in this case that there had not been gross negligence or wilful default on the part of Mr. Marata, Mr. Cherry fully accepted that there had been a serious dereliction of duty on his part, in that there had been a very long delay between Mr. Marata being put on notice that if the Appellant wanted to defend the action, an application for rescission of the Default Judgment would have to be filed, and the date when that was done.
However, Mr. Cherry submitted that, notwithstanding that apparent state of affairs the long delay could at least in part be attributed to Mr. Marata's medical condition as described in his Affidavits and supported by the medical certificate.
Accordingly, so Mr. Cherry argued, there was a reasonable explanation for the delay in filing the application for rescission and the Appellant had overcome the main hurdle. In addition he submitted that this was not a case in which the sins of the Attorney should be visited on the client, and the appeal should therefore be allowed.
For his part Mr. Carr-Hartley in a very restrained and eminently fair reply submitted that, while he had much sympathy for Mr. Marata's apparent condition, the delay in this case had not been satisfactorily explained and, in any event, the Appellant itself had not been shown to have done what it could to expedite the matter.
In my opinion, the Appellant has not established a reasonable explanation for the delay in applying for the

9
rescission of the Default Judgment and accordingly it has failed
to overcome the main hurdle.
The Affidavits of Mr. Marata even taken along with the
medical certificate do not satisfy me, in the first place, that
Mr. Marata was unable properly to carry out his duties between
the 22nd February 1996 when he was put on notice that an
application for rescission of judgment would have to be made and
the 11th March 1996 when according to the medical certificate he
was diagnosed as having an incurable condition. No doubt such
news would have come as a considerable shock to Mr. Marata and
might have led to side effects such as dizzy spells and
headaches, but there is a serious absence of information about
his state of health prior to 11th March 1996 which would explain
that initial delay. Mr. Cherry submitted that it was a
reasonable inference from paragraph 11 of Mr. Marata's Affidavit
of 5th June 1996 that he was unwell for some time before 11th
March. The paragraph is in the following terms:-
"I started to experience dizzy spells and headaches and was advised by my doctor that in addition to the medication I should stay home. I obviously followed my doctor's advice."
The trouble about that passage is that it does not make
clear to what period it is referring and for aught yet seen it
could be referring to the period after 11th March which was the
date of the medical certificate. Furthermore that interpretation
could be said to receive some support from the fact that Mr.
Marata wrote to the Respondent's Attorneys on 7th March 1996
saying:-
"We expect to serve the rescission papers on yourselves by the 13/14 March 1996. I have

10
virtually been out of office and will only be in the week beginning the 11th."
Nowhere in that letter does he mention that he has been ill or unable, as a result of a medical condition, to attend to his business. That is not the end of the matter, however, because in the second place, there is an even less explicable delay between 12th April and 6th June 1996 on which latter date the application was eventually filed.
On 12th April Mr. Marata was informed by the Respondent's
Attorneys that since they had not received the application for
rescission by that date, in spite of the terms of the letter of
7th March, it was their intention to instruct the Deputy Sheriff
to execute the Writ against the Respondent unless they received
the application within 14 days and they concluded by saying:-
"Any application for Rescission of Judgment received thereafter will be vigorously opposed."
There was no response from Mr. Marata either within the 14 days or thereafter until Mr. Badlani informed him on 29th May 1996 that the Deputy Sheriff had been instructed to execute the Writ. As is evident from the Record the Respondent had not only given Mr. Marata 14 days in which to file his Application but had held its hand for some six weeks, before re-instructing the Deputy Sheriff. On any view this amounted to a serious delay on the part of Mr. Marata and, in my opinion, there was no excuse for it.
Mr. Cherry re-iterated that this delay was also attributable to Mr. Marata's medical condition, but I cannot accept that, because, having indicated that he was suffering from dizzy spells and headaches in paragraph 11 of his Affidavit, already referred

11
to, he then goes on to say in paragraph 12:-
"The condition persisted periodically up to the middle of April 1996."
While he states later in that paragraph that "even though the intensity of the spells has been reduced, I still get occasional dizzy spells" he nevertheless was galvanised into action by the Appellant on 29th May 1996 and was able to carry out all the necessary procedure for filing the Application on 6th June 1996.
In the whole circumstances therefore, and with particular reference to the period 12th April to 6th June 1996, I am of the opinion that no reasonable explanation for the delay in filing the Application for rescission has been given, and that the Judge a quo was fully justified in refusing it.
One further point was argued before us, and that was to the effect that the Appellant itself had not been at fault in this matter and that, in this case, the sins of its Attorney should not be visited on it. There is no doubt that the sins of an Attorney can be visited on his client, see Tebagano Ngwako v The Attorney General Civil Appeal No. 41 of 1995, but Mr. Cherry submitted that there are limits to what a client can be expected to do, when he has placed his case in the hands of an Attorney, and he specifically argued that the Judge a quo had misdirected himself in finding that the Appellant itself had not taken all reasonable steps to expedite the matter by communicating with Mr. Marata. It is true that the Judge a quo took the view that the Appellant did not make enquiries of his Attorney to find out what was happening, and that that was not a wholly accurate conclusion to draw from Mr. Badlani's Affidavit of 31st May 1996 since he

12
says in paragraph 14:-
"I therefore left everything in the hands of our lawyer. However when I did ask. occasionally on the progress of the negotiations I was informed and I remember that in January 1996 I saw a letter from the Attorneys acting for the Respondents that they were still waiting for instructions from their client."
In view of the fact that the learned Judge a quo was in error in this matter it is open to this Court to consider it afresh.
In my opinion the Appellant in the shape of Mr. Badlani does not come out of this situation with an unblemished record. As far back as 26th October 1995 Mr. Badlani was told by Mr. Marata, inter alia, that the latter "was negotiating with the Attorneys for the Respondent to abandon the judgment, and that if the negotiations failed then an application will be made to the High Court to cancel the judgment." (See paragraph 13 of Mr. Badlani's said Affidavit).
Accordingly Mr. Badlani, as the Appellant's representative, knew that negotiations were taking place. In his own words he occasionally, and up to January 1996, asked about "the progress of the negotiations." He does not appear, however, to have made any further enquiries of his Attorney after that time. In my opinion that was not a reasonable attitude for Mr. Badlani to take in a situation where the Appellant was liable to have to pay out P85,666.68 together with the costs involved to the Respondent unless the Default Judgment was rescinded. Any reasonable business man would, in my view, have been concerned about his company's being liable to pay such a large amount and have made enquiries about the matter.

13
It seems to me that it is reasonable to have expected Mr. Badlani at least to have enquired as to the outcome of the negotiations between Mr. Marata and the Respondent's Attorneys during the period from January to 6th June 1996 and if he had done so he would have been in a position to put pressure on Mr. Marata to file the Application.
Accordingly, because of the inaction of Mr. Badlani I have less hesitation in visiting the sins of Mr. Marata on the Appellant, and that simply confirms me in my view that the Appellant has failed to overcome the obstacle of giving a reasonable explanation for its default. The appeal therefore is dismissed, with costs.
DELIVERED IN OPEN COURT AT LOBATSE THIS 25th DAY OF JULY, 1997

LORD W.L.K. COWIE Judge of Appeal
I agree  W.H.R. SCHREINER
Judge of Appeal
I agree  P.H. TEBBUTT
Judge of Appeal

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