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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV)38/2023
In the matter between:
KELEBONE SELOMO APPELLANT
AND
KHETHISA MOLAPO 1ST RESPONDENT
MAJOEL ADELINA MOLAPO 2ND RESPONDENT
BUTHA-BUTHE URBAN COUNCIL 3RD RESPONDENT
CLERIC OF COURT BUTHA-BUTHE
MAGISTRATE 4TH RESPONDENT
ATTORNEY GENERAL 5TH RESPONDENT
CORAM: MOSITO P
MUSONDA AJA
MATHABA AJA
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HEARD: 16 APRIL 2025
DELIVERED : 2 MAY 2025
FLYNOTE
Civil Procedure — Rescission of default judgment — Whether appellant afforded opportunity to be heard — Mandatory nature of Rule 18(2) of the District Land Court Rules — Bona fide defence — Audi alteram partem — Appeal dismissed.
The appellant sought to set aside a default judgment of the District Land Court, which had granted the respondents interdictory relief and nullified a council decision favouring the appellant’s claim to residential land. The appellant contended that he was not afforded notice of the proceedings and had a bona fide defence, grounded in a purported acquisition of the land from a third party. The High Court, dismissing the rescission application, found that the appellant had failed to file an answer in accordance with Rule 18(2) of the District Land Court Rules and had not disclosed a valid defence.
On appeal to the Court of Appeal of Lesotho, the central question was whether the failure to serve further notice after initial service of the originating application justified rescission. The Court held that once served, the appellant bore the duty to file a defence within 14 days under Rule 18(2). The appellant neither complied with the rule nor attached a draft plea or evidence demonstrating a prima facie defence. His reliance on a non-specific Form C and minutes of a council of which he was a member — without disclosing a conflict of interest, was insufficient.
While the High Court’s judgment was noted as ambivalent, it was ultimately correct in principle. The Court reaffirmed that rescission is not automatic and must satisfy the trinity of just cause: reasonable explanation for default, bona fide application, and existence of a prima facie defence. The appellant failed on all counts. The appeal was accordingly dismissed with costs.
Held, the appeal is dismissed with costs.
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JUDGMENT
MUSONDA AJA
Introduction
1. This is an appeal against the High Court judgement (Nathane J) with leave against the lower court's rejection of the rescission application.
2. The 1st and 2nd respondents applied to the Butha-Buthe Land Court for an order in the following terms:
(a)
That the decision of Butha-Buthe urban council, second respondent herein, to the effect that the 1st respondent is the owner of residential land truly described at plot No. 30072 – 197 situated at Baroeng Butha-Buthe be set aside.
(b)
That the first respondent be restrained and interdicted from interfering with the said plot in any manner whatsoever.
(c)
Costs of the suit.
(d)
Further and/or alternative relief as the court may deem fit.
Background
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3. The 1st and 2nd respondent are a couple married by civil rites and in a community of property. They are joint title holders of a residential land situated at Baroeng fully described as plot No 30072-197 measuring 1692 square metres as mirrored by the lease annexure ‘A’.
4. The 1st and 2nd respondents acquired the land in 2013 from Lebohang Schriever, a resident at the Butha-Buthe reserve, as evidenced by Annexure ‘AA1’. He inherited the land from his late grandmother Mamakoshane, who lived at Ha Belo during her lifetime.
5. A document in terms of which the late Mamakoshane expressed her intention to pass rights and interest in the land to her grandson Lebohand Schviever was annexure ‘B’, which was endorsed by the Chief of the area, Chief Belo Chona. In May 2014, the Chief of Baroeng confirmed the applicants as lawful owners of the land in terms of annexure ‘C’.
6. The 1st and 2nd respondents in possession of the area Chief’s endorsement and that of the council and an S10 from the LAA issued after the land was surveyed. The respondents applied for a lease which was duly issued dated 19th June 2014 to expire of the 18th of June 2104.
7. From 2013 until late 2019 or early 2020, the respondents were in peaceful and undisturbed possession and occupation of the
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land. Then appellant surfaced and claimed ownership of the land. He alleged that he acquired rights in the said land from one Mabataung. He was in possession of a form “C’’ document, which did not relate to the land in dispute. The 3rd respondent mediated and made a decision that appellant owned the site. It was the respondents argument in the District Land Court, in the High Court and in this Court that mediation is not, determinative, but leads to a settlement. The council therefore exceeded it’s mandate.
8. The appellant was a member of the council and participated in the proceedings he ought to have stepped aside. The purported decision was unlawful and irrational that it ought to be set aside.
9. The learned Magistrate issued an order on 21st June 2021 in the following terms:
(a) The decision of Butha-Buthe Urban Council, the second respondent herein, to the effect that first respondent is the owner of residential land fully described at plot No. 30072-197 situated at Baroeng Butha-Buthe is hereby set aside.
(b) The first respondent is hereby restrained and interdicted from interfering with the said plot in any manner whatsoever.
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10. On 2nd July 2021 the appellant filed an application for rescission and stay of execution. The gravamen of his application was that he was never served with notice. The dispute was set to be heard on 16th December 2020, but the magistrate was not available. He was surprised when he was served with the final order on 21st day of June 2021.
11. He learnt that 1st and 2nd respondents and their counsel had been to court on 12th March and were granted the order which set aside the decision of 3rd respondent (Butha-Buthe) Urban Council.)
12. The appellant averred that he was not in willful default. He did not know the date of hearing as he was given no notice. The appellant averred that he had a credible defence by way of documents and viva voce evidence.
13. In answer, the 1st and 2nd respondents averred that the appellant had been served with the main originating application sometime in November 2020 and when the matter came on the 16th December 2020, the appellant had not filed an answer. The matter could not proceed consequently. There was no obligation to serve notice in absence of an answer.
14. The respondents argue that in terms of the law and principles relating to rescission applications, an applicant for rescission sets out his defence in the application for rescission to enable
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the court to assess if indeed a bona fide defence exists. On that ground alone the application must be dismissed.
There were no reasons for the ruling by the magistrate for both orders so the court a quo and this Court have had no benefit of the District Land Court’s reasoning.
15. The High Court
The grounds of appeal in the court a quo were the following:
(a)
The learned magistrate erred and misdirected herself by finding for the applicant without evidence on how the lease document in favour of the applicants was issued;
(b)
The learned magistrate erred and misdirected herself by granting this application without the minutes of Butha-Buthe Urban Council.
(c)
The learned magistrate erred and misdirected herself by ignoring the fact that the 1st respondent was not served with a notice of appearance of respondent when granting a default judgement.
16. It was argued for the appellants that the learned magistrate erred in granting relief prayed for by the 1st, 2nd respondents in particular prayer (a) by setting aside the decision of the Butha-Buthe Council without evidence that supports the averment in the originating application. The case of Shale Shale v
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Mamoshe Limema1 restating the sui generis nature of land claims which by virtue of being inquisitional in nature, are usually complemented by viva voce evidence from both parties. There was no evidence on how the lease came to be acquired. The court a quo ought to have considered that he had a bona fide defence.
17. Counsel for the respondent contended that there was no obligation on them to lead evidence as to how the lease was obtained, when the legality of the lease was never in issue. According to the Judge he understood it to mean that the appellant never counter-claimed to invalidate it, let alone to file an answer. There was failure by the appellant to file an answer in compliance with the provision of Rule 18(1) (2) of the District Land Court Rules2.
18. The Judge a quo agreed with the rejection by the District Land Court of an attempt to impugn the respondent’s lease in the rescission application. He equally rejected the attack on the failure of the respondents to annex the minutes of the Butha-Buthe council as irrelevant. The issue was raised in the heads of argument and not in the grounds of appeal.
19. The appellant was directing respondent to one issue and then attempting to canvass another. He cited this Courts decision in
1 C of A (CIV) No 53/2014 (unreported)
2 No 2 of 2012
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Commander of the LDF and Others v Ramokuena and Another3, in which Ramodibedi, JA said :
“It is now well recognized that it is in particular wrong to direct the attention of the other party to one issue and then attempt to canvass another”
20. On failure to give notice to the appellant, the judge cited Banyane J’s decision in Amalgamated Engineering Solutions (Pty) Ltd v Mokhehle and Others4, where she said:
It is trite that failure to give proper notice of the hearing or conducting a material part of the hearing or conducting a material part of the proceedings in the absence of a party amounts to grave procedural irregularity and it has been said that where the magistrate commits a procedural irregularity the judgment decision made in those proceedings will be set aside on review, if it results in the aggrieved party not having his case fully and fairly determined.
21. The judge a quo held that, he had duly considered the four grounds, although there were three grounds of appeal. He did not agree with counsel for the appellant that they pass muster as such. They did not demonstrate, even remotely that the court a quo came to the wrong conclusion of the facts and/or
3 LAC (2005-2006) 320 at page 323 para 9
4 LC/REV/APN/26/2020 (unreported)
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the law. The main thrust of the said grounds is that the court a quo proceeded on the basis of no evidence.
22. The mere fact that the appellant purports to hold a form C to the disputed property which was not even exhibited was not enough. Moreso that the respondents alleged that form C did not relate to the site in dispute5, which issue was never even addressed in the rescission application.
23. In conclusion the judge said, it was axiomatic therefore from the foregoing that much as the appellant may have a strong arguable case, he has gone about it the wrong way by bringing review proceedings disguised as an appeal, inasmuch as none of the grounds of appeal canvassed pass muster as such.
24. Aggrieved by this decision, the appellant appealed to this court with leave of the High Court. There are two grounds of appeal.
25. (1) The learned judge erred and misdirected himself in not
finding for the appellant when he had already made a finding that the matter was heard without any notice to the appellant.
(2) The court erred and misdirected itself in holding that the grounds of appeal filed by the appellant were not grounds
5 Para 15 of the originating application at page 5 of the record
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for appeal but rather for review, regard being had to Rule 85 of the Land Court Rules.
26. The appeal sharply focusses on not being afforded an opportunity to be heard. He relied on Rules 45, 52, 55 and
63 of the District Land Court Rules. The most important one is Rule 52 couched in these terms:
“Where the court adjourned the hearing of the application ex-parte and the respondent appears at or before the hearing and shows good cause for his previous non-appearance, he may, upon such terms as to costs or otherwise as the court may direct, be heard in answer to the application at if he was heard on the date fixed for his appearance.”
Rule 55 (2)
Where one or more of several respondents duly served fail to appear the proceedings shall continue by default in respect of that or those respondents who failed to appear.
The appellant therefore says the rules as outlined make a clear indication that appellant had the right to be heard either in person or under representation.
27. In Central Bank of Lesotho v Phoofolo6 the court said:
6 (185-89) 253 at 257
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“The audi alteram partem rule is a fundamental rule of natural justice which applies in all civilized systems of law. It is applied whenever a ministerial or administrative authority gives a decision affecting the property or liberty of an individual or affecting his rights or involving legal consequence to him”
28. The court was enjoined to interrogate the parties to understand the party’s claim and the other party’s defence in writing or orally pursuant to Rule 63.
29. The appellant being in possession of form ‘C’ and the local council having determined that he was the bona fide allottee of the site, he had a bona fide defence. The council was exercising statutory power under section 14 (1) of the Land Act, 2010.
30. The learned Judge’s reasoning that the lease was not in issue was faulted as that was at the very core of the case. For the court to so hold was a misdirection.
31. For the appellant it was forcefully argued that, he was and is dissatisfied with the ruling of the District Land Court in the rescission application, hence he noted an appeal to the Land Court on both the facts and law. The appeal has absolutely nothing to do with review as there is no procedural irregularity complaint during the hearing of the rescission application.
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Respondent’s case
32. In responding to ground 1, Adv Ratau submitted that:
“It would seem that the requirement of notice is the only issue to be determined in this appeal. He contends that there is no obligation on them to do so in the circumstances”
He went on to say that it was common cause that the appellant having been served with the originating application on the 17th November 2020 never caused his answer to be served and filed within fourteen days in terms of the mandatory provisions of Rule 18(2) which provides that:
The respondent shall submit his answer with the relevant provisions of these rules within 14 days of the notice and the originating application.
33. On the 16th December 2020, when the application came for hearing, the appellant was obliged by the provisions of Rule 18(2) to come to court armed with an answer ready for service and filing, so that the court could direct the future conduct of the case.
34. It was theappellant submission that once the appellant had been served with the initial notice and the originating application pursuant to which he duly appeared he was then obliged to serve and file an answer whether or not the matter
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served before court on the 16th December 2021 and that for failing to do so until February when judgement was sought and later granted in March, he had clearly behaved in a manner contrary to the requirements of Rule 18(2). It is the respondent’s case that appellant acted in contumelious disregard of the Rules. This was not a case of proceeding against appellant without notice and should be distinguished from Amalgamated Engineering Solutions (Pty) Ltd v Mokhehle & Others (supra)
35. Issues
(i) What is the effect of non-compliant with Rule 18(2).
(ii) The effect of not filing a defence simultaneously with the
rescission application.
36. The law
Rule 18(2) of the District Land Rules is couched in mandatory terms. These Rules were intended to try land matters fairly and expeditiously. Land as an important economic resource needed a legal regime which was efficient and administering quality justice.
37. The prolonged delay in instituting or defending legal proceedings without a good reason undermines the proper functioning of justice.
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38. We further said with emphasis in Exinia Liphethiso Thamae Nee Molotsi v Maitumeleng Molotsi7, thatAllowing an appellant to prolong litigation indefinitely through inaction would grant them an unfair advantage and erode public confidence in the judicial system.
39. Rescission is not automatic even if good cause is shown; the court must decide whether justice demands it.
40. When the party applies for rescission of a default judgment, they must usually:
(a)
Provide a reasonable explanation for the default,
(b)
Show the application is made bona fide,
(c)
Show they have a bona fide defence.
To satisfy the third requirement courts generally require that a draft plea or defence be filed together with the rescission application. The case of Grant v Plumbers Pty Ltd8, is the foundational case that laid down the three requirements. In Colyn v Tiger Food Industries Ltd t/a Meodow Feed Mills (cape)9,confirmed that the applicant must show a prima facie defence and attaching a draft plea is common practice.
Consideration of the appeal
7 Exinia Liphethiso Thamae nee Molotsi v 'Maitumeleng Molotsi (C of A (CIV) 20/2017).
8 1949 2 SA 470 – (0)
9 2003 (6) SA 1 (SCA)
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41. that the High Court judgment, with the greatest respect, was ambivalent. In one breath the judge a quo dismisses all the grounds, in another breath he upholds the absence of notice. He dismisses the appeal on the ground that this was a disguised review, when the issue before him was whether, there was a reasonable explanation for the default, the application was bona fide and whether on the papers, there was a bona fide defence.
42. The respondents had demonstratably shown the paper trail on how they acquired the site upfront. They had held on to the site for close to a decade before appellant appeared on the scene. He breached the mandatory provision of the District Land Court Rules, Rule 18(2) to be specific. He applies for rescission without exhibiting his defence. He placed reliance on council minutes, of which he was one of the authors. There was an extraordinary lack of morality in not declaring interest. The appeal must fail.
Disposition
43. There was no reasonable explanation for this delay. The application was not bona fide and no defence was exhibited to the claim.
Order
(i)
Appeal dismissed.
(ii)
Costs will follow the event.
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_________________________
P MUSONDA
ACTING JUSTICE OF APPEAL
I agree
_________________________
KE MOSITO
PRESIDENT OF THE COURT OF APPEAL
I agree
_______________________
AR MATHABA
ACTING JUSTICE OF APPEAL
FOR THE APPELLANTS: ADV EM KAO
FOR 1ST & 2ND RESPONDENTS: ADV S RATAU