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IN THE HIGH COURT
OF BOTSWANA HELD AT GABORONE

CVHGB-000012-13

DATE:
26 MARCH 2013

Engen Marketing
Botswana (Pty)
Ltd……………………………………………………..PLAINTIFF

And

Viva Botswana
(Pty) Ltd t/a Petro
Botswana………………………………………DEFENDANT

Ms O. Kealotswe
for the PLAINTIFF

Mr S. Mutoriti
for the DEFENDANT

JUDGMENT

BUSANG J:

1. On the 5th
February 2013, the Plaintiff served a writ of summons on the
Defendant. The Plaintiff claims the total sum of P928,
929.81,
pursuant to a credit sale agreement, in terms of which various
Petroleum Products were supplied to the Defendant.

2. On the 21st
February 2013, Defendant’s attorneys filed in the civil
registry, an appearance to defend and a power of attorney.
However,
there is nothing in the file to show that, the appearance to defend
was ever delivered to the Plaintiffs attorneys as
provided by the
rules. Ordinarily the absence of evidence of delivery of appearance
to defend in the court file does not raise
eyebrows, because in the
most cases the Defendant’s attorney, would have in his
possession, a copy of the appearance to defend,
with Plaintiffs
attorney’s office stamp to show that, it was indeed served on
the Plaintiff, should the issue of service
arise.

3. On the 27th
February 2013, the Plaintiffs attorney applied for default judgment
and writ of execution against the Defendant and
duly filed same,
sometime thereafter, the application for default judgment was put
before the registrar who referred the case to
the court, because an
appearance to defend had been filed in the court file.

4. When the matter
was called I enquired from the Plaintiff’s attorney, how she
proposed to proceed, she stated that, the
Defendant has not complied
with the rules, in that no appearance to defend was ever served on
the Plaintiff’s lawyers in
terms of Order 9 rule 1(3) of the
High Court rules. It was only when I told her, that there was an
appearance to defend, in the
Court file, that she indicated, that she
was never aware that there was one in the Court file. Plaintiff’s
attorney further
advised that she shall be moving an application for
the granting of default judgment there and then. I asked Defendant’s
attorney if he was ready to deal with the matter and he agreed,
albeit with some reluctance. The matter was stood down to the end
of
the roll so that the other non contested matters could be disposed of
first.

5. Plaintiffs
attorney has relied on Order 9 rule 1(3) and (4) and Order 1 rule 3,
of the High Court rules which defines delivery,
in support of her
application for default judgment. Order 9 rule 1(3) states that “an
appearance is entered by properly completing
and delivering a
memorandum of appearance” Order 1 rule 3 defines delivery as
follows;

“file the
original with the registrar and serve copies bearing the Registrar’s
date stamp on all parties”.

6. Mr Mutoriti does
not say in his submissions that, appearance to defend was indeed
delivered. Instead, he says an instruction
was given to one of his
assistants to deliver it and he asks for a few days adjournment so
that he may investigate with his office,
why the appearance to defend
did not seem to have been served. At the time of his submissions, he
had with him the file in respect
of this matter. He said that, the
said file was not complete, and that it may be possible that, the
appearance to defend with Plaintiffs
stamp could be lying somewhere
in his office or in another file. He also said his assistant who
could give an explanation, with
respect to what happened to the
appearance to defend was out of the country for a few days. I told Mr
Mutoriti that, I could give
him an adjournment of about an hour at
most to investigate. He insisted that, that shall not be enough,
though no explanation was
put forward why it should take a few days
to get information from the right person.

7. I need to
emphasize that, Defendant’s attorney never made an application
for condonation from the bar. He never asked for
an adjournment to
make an application for condonation, he was instead content with
saying, an instruction had been given to serve,
and that an
explanation shall be provided when the time is right.

8. The notice of
hearing in this case was sent to the lawyers almost three weeks
before the hearing. In terms of the rules, a declaration
and/or
declaration and summary judgment application are to be filed fourteen
court days after service of appearance to defend.
A period of a month
lapsed between the filing of appearance to defend by the defendant’s
attorney and the hearing of this
matter. Defendant’s lawyer
should have jumped into action, when he received the notice of
hearing and when, he realized,
that Plaintiff’s attorneys were
taking long to serve him with a declaration. He did not do anything.

9. The Plaintiff has
applied for default judgment, which as I indicate was done a month
ago. The Defendant, has not done anything
before coming to court. The
Defendant’s attorney agrees with Plaintiffs submissions that,
where no appearance to defend has
been served, then no proper
appearance has been entered. However, despite there being nothing to
show as evidence of delivery,
Mr Mutoriti, still insists that, upon
investigation he may be able to come up with something.

10. In support of
her submissions, Plaintiffs attorney referred me to the following
cases, First National Bank Limited and Hussain
cc No 4383/2004 where
Lesetedi J. stated as follows;

“It is to be
noted that a defendant only properly enters an appearance to defend
by complying with Order 9 rule 1(3) and (4)
of the High Court rules.
The two subrules require that an appearance to defend is entered
properly by completing and delivering
a memorandum of appearance.
Such delivery is made by way of sending the memorandum of appearance
to the Plaintiff or his attorney
at the Plaintiffs address for
service and by delivering it to the Registrar. Service and filing of
the memorandum of

appearance must
therefore be on both the Plaintiff and the Registrar. Where the
memorandum of appearance has not been served on
the Registrar, there
can be no proper entry of appearance. See also the definition of
“delivery” under Order 2 of the
High Court rules”.

and First National
Bank of Botswana vs Tshepo Pelekekae and Others 1525/2000 where
Nganunu C. J. stated that

“By the rules
of the High Court regulating procedure in the courts every court
document requiring to be served must be filed
with the Registrar at
the appropriate registry and also it must be served on all parties to
the action and those who have an interest
in the matter. Generally
therefore where one talks of service of court documents one has in
mind service to all the parties concerned
in the action together with
the Registrars’.

11. In the case of
First National Bank vs T and M. Engineering and Transport Services
(Pty) Ltd HCCC No 1568/93 Nganunu J. dealing
with compliance with
court rules said;

“A court of
law is entitled to regulate its own procedures to meet the ends of
justice, so that whilst the rules provide for
procedures and time
limits for submitting or taking steps in proceedings, the court is
still entitled to grant indulgencies and
condone certain shortcomings
on good cause shown in the interest of justice. In particular the
court would not lightly wish to
be tied down by the procedures so as
to prevent it taking steps which will lead to a speedy and orderly
determination of an issue.
On the other hand, if it appears that a
party to the proceedings is negligent or is not serious in the steps
it takes in compliance
with the Rules, then such a party should not
be surprised if the court enforced the terms of the Rules
vigorously”.

12. In the case of
R.O Investments (Pty) Ltd v Consolidated Press of S. A, Ltd 1949 (4)
SA 454, the South African Court,

was dealing with a
similar case, but with rules of Court, which are not inpari materia,
with our rules the Court declined to grant
judgment because in terms
of the said rules, “the appointment of an address was entry of
appearance in terms of Rule 17 even
though the Plaintiff had no
notice thereof I say, that the said rules are different from ours
because our rules don’t talk
of appointment of address, but
completing and delivering a memorandum of appearance. The local
authorities cited above clearly
state that, where Plaintiff has not
been served, then Defendant is as good as having not done anything.

13. In view of Mr
Mutoriti’s concession on the position of the law, and in the
absence of anything other than, the default
judgment application
which I being asked to grant, I have no choice but to accede to the
Plaintiffs application. Accordingly;

a. Judgment is
granted to the Plaintiff in the sum of P928, 929.81.

b. Interest at Prime
lending rate plus 5% per annum calculated from date of summons to
date of final payment.

c. Costs of the
suit.

DELIVERED IN OPEN
COURT AT GABORONE

ON 26th MARCH
2013

R.S Busang
(Judge)

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