Ramosu v Metsi Drilling Company (Pty) Ltd (Civil Appeal No. 22 of 201) [2002] BWCA 4; [2002] 2 B.L.R. 85 (CA) (2 January 2002)

This is an appeal against a judgment of Walia L.S. Ag.J dismissing an application for rescission of a default judgment dated 1^st September 2000 entitling the respondent to recover PI 16 900.00 with interest and costs. By writ of summons, the respondent claimed payment from the appellant for services connected with the drilling of boreholes at the appellant's cattle post and farm.

In order that the matter can be properly understood, it is necessary to give an outline of the procedural history of this case. The summons was served on 16 February 2000 and on 29 February appearance to defend was entered. An application for summary judgment was filed on 6^thMarch. This was opposed by way of an opposing affidavit and on 17 March Nganunu CJ granted summary judgment for a certain proportion of what was sought by the respondent but required certain other matters to be resolved after trial. For that purpose the court granted leave to defend. It is important to note that no plea was entered by the appellant within the 14 day period prescribed by Rule 25 (3) (2) and matters rested for some months. By August of the same year, the respondent lost patience and on 3^rd August Mr. Kgafela, the attorney for the respondent, served a notice of intention to bar in terms of Order 20 of the rules of the High Court. In terms of this notice, the appellant was required to file his plea or other answer to the respondent's claim within four days. The time limit expired without any such step being taken and the respondent barred the appellant. The order was perfected on 21^st August and this had the effect of preventing the Registrar from accepting any plea. Notwithstanding this, the appellant was at last spurred into action and purportedly filed his plea with the Registrar on 29^th August. Somewhat surprisingly, the Registrar appears to have accepted this plea but that was of no avail

because it was not within his competence to do so. On 1^st September a default judgment was issued in respect of "the Defendant having failed to enter defence (plea) and defendant having been duly barred." The respondent lost no time in obtaining a writ of execution in pursuance of the judgment and on 8^th September the Sheriff attached certain property belonging to the appellant. Finally the appellant on 3 October applied for a rule nisi seeking a stay of execution, the uplifting of the bar and the rescission of the default judgment. The court a quo duly stayed the execution and the remaining matters were ultimately considered by Walia L.S. Ag.J. It is his judgment thereon which is the subject of this appeal.

It was not suggested that the court a quo had misdirected itself in law on how to approach the matter of whether or not to rescind a default judgment. There is a useful discussion of the relevant considerations which have to be taken into account in the Civil Practice of Supreme Court of South Africa by Herbstein and Van Winsen 4^th Edition pp 555 -557 and in reported cases in Botswana, viz British Auto Botswana (Pty) Ltd. v. Alpina Building Methods (Pty) Ltd. 1987 BLR 451, Kgote v. Pilane and Associates 1995 BLR 279 and Tex v. Manica C.A 45/96. From these sources, the following guidance can be derived. For relief to be given, there must be a bona fide arguable defence. If this is not demonstrated, the court will be astute to infer delaying tactics on the part of the defendant which it should

not tolerate. The court will be minded to consider granting relief if any prejudice suffered by the party holding the default judgment can be rectified by an award of expenses. But even if there is a bona fide arguable defence, that will not necessarily prevent the court from denying indulgence to a defaulting party. This can happen if the circumstances indicate intentional or reckless or grossly negligent disregard of the rules of court by the party or his attorney. If the lack of diligence is seen to be the fault of the attorney alone this may allow relief to be granted on the basis that a client should not be penalised for the negligence of the attorney. On the other hand the court may refuse to do so if the degree of culpability has reached such a level as to debar him from relief.

It must be emphasized that in reaching its decision on such a question, the court a quo is exercising a discretion and this court will not interfere unless it is clear that the court a quo has misdirected itself as to the law, or has failed to take into account relevant factors, or has taken into account considerations which it should not have done.

In this case, certain facts are all too clear. Although appearance to defend was entered in February 2000, the appellant's attorney took no steps to enter a plea This should have been done in terms of Order 25 (3) (1) within 14 days of the entry of appearance. No steps were taken to seek the court's leave to extend the time to file the plea. A period of five months elapsed and no steps were taken to comply with Order 25 (3) (2) viz to enter the plea within 14 days of the granting of summary judgment by Nganunu CJ. Even when after a lapse of some months, notice to bar was served, no steps were taken to file a plea. Only after the order of bar had been perfected did Mr. Toteng exert himself by purportedly lodging a plea.

The failure to file the appellant's plea with 14 days of the order of the Chief Justice cried out for an explanation. The court a quo held that there was no explanation whatsoever to account for the failure to file the plea timeously. This finding was challenged by Mr Nnoi who appeared for the appellant and who, it must be said, was not acting for him at the time. He referred us to the affidavits of Mr. Toteng for the appellant and Mr. Kgafela with a view to showing that by early August at least Mr. Toteng was in discussions with Mr. Kgafela and was asking indulgence so that he could consult with his client about the nature of the plea which had to be entered. While that may have been the case, there is no explanation for this long delay in even taking the first steps towards entering a plea. In my view there are no grounds for disturbing the finding of the court a quo that no explanation for the delay was put forward.

A further important factor which the court a quo took into account was that during the early summer of 2000 when it might be supposed some sign of activity might be detected in the office of Mr. Toteng, the latter and the appellant were in fact in contact. Moreover the court held that the appellant was not away from home. Mr. Nnoi submitted that the court a quo erred in making findings to that effect. It was contended by Mr. Toteng before the court a quo that the appellant was away between March

and August and also that the further delay between service of the notice of bar and the eventual purported filing of the plea was due to his absence. The court a quo held that this appeared to be untruthful because payments were made to the respondent's attorneys on three occasions during May and June. Therefore it had to be inferred that either the appellant was not away or was in contact. Mr. Nnoi submitted that no such inference should necessarily have been drawn from the fact that these payments were made. The contention was, in my view, conclusively answered by Mr. Kgafela. He submitted that not only was it proper to make such an inference but there was evidence to show that Mr. Toteng and his client met each other during this period. In his affidavit, Mr. Kgafela deponed that Mr. Toteng met with the appellant more than once to arrange payment in terms of the summary judgment order. Indeed, Mr. Kgafela happened to enter Mr. Toteng's office and found him with the appellant. This evidence was not challenged in affidavit evidence either by Mr. Toteng or by the appellant. Accordingly it is quite clear that when Mr. Toteng stated in answer to a question by the court a quo that the delay was caused by the absence of the appellant between March and August 2000, he was not speaking the truth.

this was not a proper case for the "sins of the attorney" to be visited on the appellant. If there was professional negligence on the part of the attorney, it did not reach such a level as to deprive the appellant of the right to defend his claim. I have no hesitation in rejecting the submission. The degree of inaction on the part of the attorney was inordinate. The delays were unconscionable. The repeated indulgences offered by the respondent's attorney received no response and the explanation by Mr. Toteng appears to have been untruthful. All these factors entitled the court a quo to reach the conclusion that the degree of negligence was so high as to justify refusing the rescission of summary judgment. If this decision seems harsh to the appellant, he may have a remedy in the form of a claim for damages on the ground of professional negligence on the part of Mr. Toteng.

Botswana: Court of Appeal

Ramosu v Metsi Drilling Company (Pty) Ltd (Civil Appeal No. 22 of 201) [2002] BWCA 4; [2002] 2 B.L.R. 85 (CA) (2 January 2002)