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First National Bank of Botswana Ltd. t/a Wesbank v Masilonyane (Civil Appeal No. 39 of 204) [2005] BWCA 2 (1 January 2005)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CIVIL APPEAL NO. 039 OF 2004 HIGH COURT CIVIL CASE NO. 171 OF 2004
In the matter between:
FIRST NATIONAL BANK OF BOTSWANA LIMITED
t/a WESBANK      APPELLANT
and
DESMOND MAGARE MASILONYANE       RESPONDENT
For the Appellant:       Mr. T. Dambe
No appearance for the Respondent
CORAM: P.H. TEBBUTT J.P. A.M. AKIWUMI J.A. S.A. MOORE J.A.
JUDGMENT
TEBBUTT J.P.
This appeal concerns an application for the rescission of an order for summary judgment.
On 14 April 1997 the respondent bought a car, on hire purchase, from the appellant, a 1997 Ford Bantam 1.3 model, for a total purchase price, including finance charges, of P41 256.00. He had to pay to appellant

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monthly instalments of PI 146.00. The agreement between the parties was that if the respondent failed to make punctual payment of any instalment, the full balance of the purchase price would become due and payable. Alternatively, the appellant was entitled to terminate the agreement, repossess the car and claim damages for breach of contract. It could also claim interest on any amounts falling due to it and recover any costs incurred by it in repossessing the car and recovering any monies owing to it, including legal costs, on an attorney and client basis.
The respondent fell badly into arrears with his payments and on 4 July 2002, the appellant terminated the contract and the respondent, on demand by the appellant, surrendered the vehicle to it. The appellant then sold the vehicle for P19 566.00. As a result the appellant alleged it had suffered damages in a sum of P23 977.97, that figure being calculated and set out in a certificate of indebtedness by a manager of the appellant.
On 3 February 2004 the appellant issued summons in the High Court against the respondent claiming payment of the said sum of P23 977.97, together with interest and costs on an attorney and client scale.

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The respondent on 23 April 2004 entered appearance to defend the action, giving as his address for service in the matter "Box 404317, Gaborone, and/or Mathiba Ward, Mmathethe".
On 3 May 2004 the appellant applied for summary judgment on its claims, making the customary averment in such applications, through its senior credit manager, that the respondent had no bona fide defence to the action and had entered appearance to defend solely for the purpose of delay. The notice of application was served by sending it by registered post to the postal address chosen for service by the respondent.
The respondent filed a request for further particulars from the appellant on 12 May 2004.
On 14 May 2004 the appellant applied for, and obtained from the High Court, an order granting the appellant summary judgment as prayed. There was no appearance by or for the respondent on that day.
On 19 May 2004 the respondent applied by way of notice of motion for an order rescinding the order for summary judgment. In his founding affidavit to his application the respondent averred that the latter order had been "erroneously sought or erroneously granted" in that the notice of application for summary judgment had never been served on him. He

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said that while he could not deny the fact of the posting of the application he had "not received from the Post Office the documents relating thereto". He was surprised that the appellant had chosen to attempt service on him by registered post when it had previously served other documents in the matter on him personally.
The respondent averred further that he had a bona fide defence to the action. I shall deal with this presently.
He accordingly applied, in terms of Order 48(l))a) of the High Court Rules, that the judgment against him be rescinded.
It is to be noted that in his notice of motion the respondent again chose his same postal address as his address for service.
Dow J., before whom that application came, granted it ordering that the order for summary judgment be set aside and giving leave to the respondent to defend the action. She also ordered him to provide a physical address for service of the process in the matter. She awarded costs to the respondent.
In her judgment Dow J. concluded that the respondent's claim that he did not receive the application for summary judgment had merit. She

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stated that FNB was entitled to serve by registered post because the respondent had chosen, both in his appearance to defend and his notice of motion, a postal address as his address for service. The question, though, she said, was whether he did receive service - he had said he did not and she believed him.
As to the question of his defence she felt the matters raised by him were important enough for the matter to go to trial.
It is clear that the alternative address for service given by the respondent as "Mathiba Ward in Mmathethe," was not a proper address, the ward consisting of many residences therein. However, the postal address supplied was a proper address for service. Unlike South Africa where such an address is precluded by that country's rules of court, the rules of the High Court in Botswana do not preclude the use of such address. Indeed, Order 9(1)(4) provides that an entry of appearance to defend may be delivered by post. Having chosen the postal address as the respondent did as his domicilium citandi the appellant was fully entitled to serve the application for summary judgment there and that being good service, the application for rescission should not have been granted unless the Court a quo was satisfied that the respondent wished to defend the action but by reason of non-receipt of the process he was precluded from doing so. Dow J. said that she was so satisfied.

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That, however, is not the end of the matter.
The High Court has held that a summary judgment cannot be set aside in the same way as a default judgment (see Raditsebe v. Nash and Co. (Pty) Ltd 1988 BLR 305). It held that although the applicant in that case claimed that summary judgment had been given in his absence and erroneously, summary judgment can only be set aside under the common law on any of the grounds on which restitutio in intergrum would be granted such as fraud or some other cause e.g. in rare cases, Justus error).
In my view this approach is too narrow. It has repeatedly been held by this Court that summary judgment in an extraordinary, stringent and drastic remedy closing the door as it does in final fashion to a defendant (see e.g. Thamatlhogo Training and Conference Centre v. Botswana Development Corporation 1999[1] BLR 94 (C.A.) at 99 G and cases there cited).
To confine an application for rescission of a summary judgment only to the grounds suggested in the Raditsebe matter is therefore, in my view, too restrictive. I am of the view that the correct approach to such an application, as indeed also to applications for rescission of default

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judgments, is that set out by White J. in the South African case of Nyingwa v. Moolman NO 1993(2] S.A. 508 (TKGD), in which he followed the judgment of the South African Appellate Division in de Wet and Others v. Western Bank Ltd 1979 S.A. 1031 (A.D.).
He dealt with two scenarios: (i) where the applicant contends that the judgment was "erroneously granted" as provided for in Order 48(l)(a) of the High Court Rules; and (ii) where the application may succeed under the common law.
In the present case it cannot be found that the judgment was erroneously granted. The respondent chose as his domicilium citandi a postal address. The application was properly served there by registered post. The Court therefore correctly granted judgment and not "erroneously", as set out in Order 48(l)(a), when the respondent was in default. There was nothing wrong in its doing so.
In de Wet*s case the Court stated that under the common law the Courts of Holland were empowered to rescind judgments obtained on default of appearance on sufficient cause shown. No rigid limits were set as to what constituted sufficient cause. It was a matter for the court's discretion but the courts were guided by considerations of fairness and justice. The onus of showing sufficient cause was on the applicant in

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each case. The court's "discretion under the common law was not limited to considerations such as those set out in provisions like Order 48(l)(a) nor only to grounds like fraud or, in rare cases, Justus error". Applying these dicta White J. held that any judgment can be rescinded under the common law. The court must consider if the applicant for rescission has discharged the onus of showing sufficient cause i.e. he must (a) present a reasonable and acceptable explanation for his default and (b) establish that on the merits he has a bona fide defence which prima facie carries some prospect of success (see Chetty v. Law Society, Transvaal 1985[2] S.A. 756 (A.D.) at 765 A - C).
The respondent has, in my view, not discharged that onus.
It is, I think, necessary at this stage to refer briefly to the history of this matter.
The notice of appeal was filed in November 2004 and the appeal set down for hearing in the January 2005 session of this Court. The appellant had, however, not obtained leave of the High Court as it was obliged to do, the judgment of Dow J. being in respect of an interlocutory matter. The case was then postponed by this Court to its session of July 2005 to allow the appellant to obtain such leave. The respondent did not contest that. That leave was granted by Tafa AJ. on 26 August 2005. The

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respondent did not seek to oppose it. The matter was then enrolled again for the present, i.e. January 2006, session of this Court.
The appeal was set down for 16 January 2006. On that day the respondent did not appear. He informed Mr. Dambe for the appellant, who tried to find out why the respondent had not been present that he was busy in the Magistrate's Court and could not come to the Court of Appeal. The appeal was then postponed to 23 January 2006. In order to ensure that the respondent would be present then, the appellant made strenuous efforts to trace the respondent, enlisting the assistance of the Deputy Sheriff. The latter, in an affidavit filed with this Court, stated that he had telephonically communicated with the respondent who had taken up, what I may describe as, a completely "devil-may-care" attitude to the Deputy Sheriffs admonition that he should ensure that he was present at the Court of Appeal on 23 January 2006. The Deputy Sheriff said that the respondent was fully aware of the hearing of the appeal on 23 January 2006 but "appears to be intentionally avoiding receiving formal service of the notice of set down."
The respondent did not appear, either in person or by a representative, when the appeal was called on 23 January 2006.

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In his explanation for his default of appearance when summary judgment was granted the respondent baldly asserted that he never got notice of the application for summary judgment. Despite the finding of
Dow J. that she believed the respondent in this, I have grave doubts as to his veracity in the light of all the events tending to show that he is delaying the evil moment in this matter. Moreover, I find it extremely unlikely that, the process having been sent by registered post to his postal address, he did not receive it from the post office. His explanation is in my view fraught with suspicion.
More importantly, however, the respondent, in my view, has not shown that he has a bona fide defence and that he has prima facie prospects of it succeeding. The respondent does not contest the amount of the appellant's claim or say that it is incorrect or that he has paid any amounts over and above those set out in the certificate mentioned. He merely says that the appellant "has failed to show a breakdown or statement in respect of the alleged debt of P23.977.97." This is blatantly false. The certificate of indebtedness setting out the amount of the debt (and which was attached to the appellant's particulars of claim) contains a detailed breakdown of how the amount is calculated and arrived at.

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The main, and only other, defence put up by the respondent in his application for rescission is that the appellant's claim was prescribed. He said the cause of action arose at the time of - and I quote - "the unlawful repossession of the motor vehicle in 1997", elapsing in 2000.
This, again, is spurious and blatantly false. The hire purchase agreement was entered into by the respondent in 1997 and from the amount of repayments made by him of P28 978.82, as reflected in the Certificate of Indebtedness, which amount the respondent has not challenged, it is clear that the respondent paid the monthly instalments of PI 146.00 over a period of 25 months during which he obviously had the use of the car. The car could therefore not have been repossessed in 1997. The appellant says that only occurred in July 2002, and its claims as contained in the summons and particulars of claim of February 2004 were therefore by no means prescribed.
The respondent has not shown any bona fide defence whatsoever.
The application for rescission of summary judgment should therefore not have succeeded in the High Court.
The appeal, therefore, succeeds and the order dated 14 May 2004 for summary judgment is restored.

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The costs of the appeal, to which the appellant is entitled, are to be paid by the respondent on the attorney and client scale, as provided for in the hire purchase agreement between the parties.
DELIVERED IN OPEN COURT AT LOBATSE THIS 27TH DAY OF JANUARY, 2006.
P.H. TEBBUTT JUDGE PRESIDENT

I agree
A.M. AKIWUMI JUDGE OF APPEAL

I agree 
S.A.MOORE JUDGE OF APPEAL

IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No. 39 of 2004 (High Court Civil Case No. 171 of 2004)
In the matter between:
FIRST NATIONAL BANK t/a WESBANK  Appellant
Versus
DESMOND M. MASILONYANE   Respondent
Mr. T. Dambe for the Appellant No appearance for the Respondent

JUDGMENT
CORAM: TEBBUTT, J.P. KORSAH, J.A. GROSSKOPF, J.A.
TEBBUTT, J.P.:
On 14th October 2004 Dow J in the High Court rescinded an order of summary judgment granted by Molokomme J to the appellant against the respondent in this appeal. The appellant has now brought an appeal against that rescission to this Court.
It is not necessary for me at this stage to set out the facts upon which summary judgment was granted nor to consider whether it was properly rescinded by Dow J, which the appellant says it was not. Suffice at this

stage for me to give the main reason for Dow J doing so. It is the following: In his memorandum of appearance, when he entered his appearance to defend following service upon him of the summons in the case, respondent, as is required by Order 9 Rule 3 (a) of the High Court Rules, provided as his address for service of all future process "Box 404317, Gaborone and/or Mathiba ward, Mmathethe village."
Following the entry of appearance the appellant brought its application for summary judgment, filing with it the usual affidavit that the respondent had no bona fide defence but had entered appearance solely for the purposes of delay. The application and a notice of set down for the hearing of it on 14th May 2004 were posted by registered post to the Post Office box number provided for service as afore-stated. There was no appearance by the respondent on the day the application for summary judgment was heard and summary judgment was granted in his absence. On 19 May 2004 the respondent lodged his application for rescission, complaining inter alia that he did not receive the application. He did not dispute that it had been posted by registered post but said it had not reached him. He was shocked to hear that summary judgment had been granted against him, a fact he had confirmed on 18th May 2004.
In her judgment granting the rescission Dow J said:
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It is my conclusion that the claim by defendant (i.e. respondent) that he did not receive the application for summary judgment has merit.
While stating that service by the appellant at the address chosen by respondent i.e. the mailbox, was not unreasonable, the learned judge, however, said:
"The question though is whether he did receive service at his chosen address and he says he had not and on a balance of probabilities, I believe him."
The judgment appealed against therefore relates to a rescission of a judgment on the ground that the latter was given in default of service of the application for summary judgment on the respondent. It is akin to an order setting aside a default judgment. It is not a final judgment. The issues in the main action are left undisturbed. As such it is an interlocutory judgment. The effect of this is that leave from the court a quo to appeal against the rescission granted was necessary before the appeal itself could be brought in this court. It is common cause that this has not occurred.
The appellant agrees that it will have to follow that course and asks that the appeal should not be struck from the roll but be allowed to stand
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over while the necessary leave to appeal is sought in the High Court or, if unsuccessful there, on application to this Court for such leave.
In a similar matter before the South African Court of Appeal the court there allowed an appeal before it, where leave to appeal had not been applied for and granted by the court a quo, to stand over pending an application for such leave (see Oliff v. Minnie 1952 (4) SA 369 (A) at 376). This commends itself to me as a sensible approach to adopt and I think this court should do the same.
The following order is therefore made:
 1.      The appeal is postponed to the next session of this Court in July 2005.
 2.      The appellant is given leave to apply within 30 days of this order to the High Court for leave to appeal to this Court or failing such leave, to apply to this Court for leave to appeal to it.
 3.      Service of the application for leave to appeal in the High Court and of this order is to be effected on the respondent by registered post at the address chosen by him for service, viz., Box 404317, Gaborone and by one publication in the Botswana Gazette newspaper.
 4.      The costs of these proceedings are to stand over for later determination.
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DELIVERED IN OPEN COURT AT THE COURT OF APPEAL, LOBATSE
this     day of JANUARY 2005.

I agree
I agree
P. H. TEBBUTT JUDGE PRESIDENT
K. R. A. KORSAH
JUDGE OF APPEAL
F. H: GROSSKOPF JUDGE OF APPEAL

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