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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CIV) No. 68/2024
In the matter between:
MAKHAKHE MAKHAKHE APPELLANT
AND
THATO MASOABI 1st RESPONDENT
DEPUTY SHERIFF LEQHAOE 2nd RESPONDENT
CORAM: DAMASEB AJA
MUSONDA AJA
CHINHENGO AJA
HEARD: 14 APRIL 2025
DELIVERED: 2 MAY 2025
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FLYNOTE
Civil Procedure — Application for rescission of default judgment — Condonation for late filing — Requirements for rescission at common law — Reasonable explanation and bona fide defence — Negligence of legal representatives — Discretion of the court — Finality in litigation — Delay and prejudice — Whether High Court’s discretion judicially exercised.
The appellant sought to rescind a default judgment granted against him in the High Court for failing to enter an appearance in a claim for repayment of M100,000. The delay was explained on the basis that his attorneys failed to act, but the High Court found the explanation inadequate and dismissed the application, holding also that the appellant’s alleged defence lacked merit. On appeal, the appellant persisted, asserting the money was not a loan but proceeds of a joint venture.
Held, dismissing the appeal:
(1) The appellant’s passivity and unexplained delay undermined any claim to a reasonable explanation, and legal representatives' negligence is not sufficient justification for default.
(2) The alleged defence was speculative and failed to meet the standard of a bona fide defence with prospects of success.
(3) The High Court properly exercised its discretion, taking into account the principles of finality in litigation and the prejudice to the successful litigant.
(4) No basis was shown for appellate interference with the High Court’s findings or exercise of discretion.
Appeal dismissed with costs.
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JUDGMENT
MUSONDA AJA
Introduction
[1] This is an appeal against the judgment of the High Court ( Mathaba J) dismissing the appellant's application for condonation and rescission of a default judgment.
[2] The factual background is not in dispute. The appellant and the first respondent were previously in a romantic relationship. Following the deterioration of their relationship, the respondent instituted action in the High Court claiming repayment of M100,000 allegedly lent to the appellant. The appellant failed to enter appearance to defend, resulting in a default judgment granted on 21 March 2016.
[3] Only months later, after receiving a writ of execution, did the appellant seek to stay the execution and rescind the judgment. His explanation was that he had entrusted his attorneys to defend the action but they failed him.
[4] The High Court dismissed the application for rescission, finding that the appellant had failed to provide a reasonable and acceptable explanation for his default and that he lacked a bona fide defence with prospects of success.
[5] Before us, the appellant persists in challenging the refusal of rescission, contending that his legal representatives let him down and that he possesses a defence on the merits: namely, that the
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funds were not a loan but the fruit of a joint enterprise between the parties.
Principles Governing Rescission
[6] It is settled law that rescission at common law requires the applicant to show "sufficient cause". This involves two essential elements: first, a reasonable and acceptable explanation for the default; and second, a bona fide defence carrying some prospect of success. (Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 764J-765C; CGM Industrial (Pty) Ltd v Adelfang Computing (Pty) Ltd C of A (CIV) No 16/2002).
[7] The discretion to rescind a judgment must be exercised judicially, having regard to all the circumstances, including the importance of finality in litigation and the prejudice to the successful litigant (De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A) at 1042).
[8] Moreover, as emphasised by this Court in Attorney General and Another v Molefi and in Exinia Liphethiso Thamae nee Molotsi v Maitumeleng Molotsi, unexplained or prolonged delays in seeking rescission cannot be condoned, as they undermine the efficient administration of justice.
Application to the Facts
Reasonable and Acceptable Explanation
[9] The appellant's attempt to blame his erstwhile attorneys lacks merit. It is trite that negligence by legal representatives is not
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necessarily a sufficient excuse for non-compliance (Jaloojee & Another NNO v Minister of Community Development 1965 (1) SA 769 (A) at 770H-771A).
[10] Even accepting that he engaged Mosuoe Associates, the appellant demonstrated startling passivity thereafter. Having received no updates from his attorneys and faced with the service of a default judgment, he waited months before taking corrective steps. Such indifference is inconsistent with the diligence required of a litigant seeking the court's indulgence.
[11] Furthermore, the High Court made a factual finding that the appellant had not been candid regarding his dealings with his attorneys. There is no basis to disturb that finding.
Bona Fide Defence with Prospects of Success
[12] The appellant's purported defence — that the M100,000 was not a loan but a product of joint enterprise efforts — is speculative and unconvincing. It does not meet the threshold of a "bona fide defence" that prima facie carries prospects of success.
[13] It is well-established that the defence must be more than a mere denial; it must disclose a triable issue (Smith NO v Brummer NO 1954 (3) SA 352 (O) at 358). The appellant’s explanation, vague and unsubstantiated, falls far short of this standard.
Delay and Prejudice
[14] The appellant's delay in seeking rescission, and even more egregiously in prosecuting his appeal, was excessive and
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unexplained. Courts rightly guard against attempts to frustrate the execution of judgments through tactical delays (Mokhobo v Lesotho Electricity Company C of A (CIV) No 31/2019).
[15] The successful litigant is entitled to the fruits of his judgment without undue delay or obstruction (Exinia Liphethiso Thamae nee Molotsi v Maitumeleng Molotsi, supra).
Disposition
[16] In all the circumstances, the High Court was correct in dismissing the applications for condonation and rescission. The learned judge exercised his discretion judicially and in accordance with settled principles. No misdirection has been shown warranting appellate interference (Motebejane v Boliba Multi-Purpose Co-operative Society C of A (CIV) No 15/2007).
[17] In the result, the appeal falls to be dismissed.
Order
(i)
The appeal is dismissed.
(ii)
(ii) The appellant shall pay the costs of the appeal.
______________________
P. MUSONDA
ACTING JUSTICE OF APPEAL
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I AGREE
_____________________
P.T. DAMASEB
ACTING JUSTICE OF APPEAL
I AGREE
________________________
M. CHINHENGO
ACTING JUSTICE OF APPEAL
FOR THE APPELLANT: ADV. K. LESUTHU
FOR THE RESPONDENTS: ADV. S.S. TSABEHA