HIGH COURT OF LESOTHO
HIGHLANDS DEVELOPMENT AUTHORITY
by the Honourable Mr Justice WCM Maqutu on the 4th day of May, 2000.
an application for rescission of judgment granted by default by Guni
J on the 22nd November, 1999. It is opposed by the applicant.
had been instituted by way of application. The Notice of Motion,
which was filed of record on the 29th October, 1999, had also been
served on the respondent on the 29th October, 1999. I will assume it
had first been served before being filed in the High Court. It is as
OF MOTION KINDLY TAKE NOTICE that an application will be made before
Court on behalf of the above Applicant on 8th day of November 1999 at
9.30 a.m. or so soon thereafter as the matter may conveniently be
heard for the order in the following terms;
the Respondent to pay the Applicant monies which the Respondent had
underpaid Applicant as from the date of Applicant's promotion,
together with the increments thereto, till the Applicant's
termination of services with the Respondent;
Respondent to pay costs of this application;
applicant such further and/or alternative relief;
FURTHER NOTICE that Applicant's affidavit will be used in support of
MASERU THIS 25™ DAY OF OCTOBER 1999."
important facts to note about this Notice of Motion are the
informed respondent that application would be made on the 8th
November, 1999 at 9.30 a.m..
did not conform as nearly as possible with Form J.
Respondent had properly been told that he should be in court at 9.30
a.m. on the 8th November 1999, and should have been there. His
failure to be there is undoubtedly remissiveness. I will return to
this issue later.
litigant proceeds by way of application, he is bound to follow the
Rules of Court. They have not been introduced to make litigation
technical or to make co
a mine-field in which a litigant is often sunk by collision with many
meaningless rules, that ultimately lead to a denial of justice. Rule
8(7) of the High Court Rules 1980 provides:
"Every application other than one brought ex parte shall be
brought on notice of motion as near as may be in accordance with Form
"J" of the First Schedule hereto and true copies of the
notice, and all annexures thereto, shall be served upon every party
to whom notice is given."
features of Form "J" are the following:
gives notice to respondent that he intends to bring a claim before
the notice of motion applicant must tell respondent the nature of
his claim or remedy he seeks,
notice of motion also serves respondent with an affidavit
accompanying his application containing the evidence supporting his
also notifies respondent of the address within 5 kilometres at which
applicant will receive all answering papers from respondent,
notice of motion must warn respondent that he is expected to notify
applicant if he intends to oppose the application within a specified
notice of motion goes further and emphasises to respondent that
"further take notice that you are required to appoint in such
an address within 5 kilometres of the Registrar at which you will
accept notice and service of documents in the proceedings".
in the notice of motion is further told "take notice further if
you intend opposing this application...within fourteen days of such
notification, to file your answering affidavits if any".
the notice of motion tells respondent that if no notice of intention
to oppose the application is given, the application will be heard on
a particular date and a specific time.
outset, it has to be emphasised that the rules although binding
should be applied purposively to achieve the ends of justice. Rule 59
therefore states "the court shall always have discretion, if it
considers it to be in the interests of justice, to condone any
proceedings in which provisions of these rules are not followed".
Certainly condoning a departure from the rules by an applicant for
the purpose of denying respondent a right to put its case by denying
an application for rescission of judgment causes a breach of the audi
alteram partem principle. This, courts are often reluctant to do. In
Barclays Nationale Bank BPK v Badenhorst 1973(1) SA 333 in a case
where an application for provisional sequestration had been made on
an incorrect form, the issue in deciding whether to condone this
became whether there had been prejudice to respondent. It seems to me
that here too, good cause has to be shown whether in the
circumstances of the case the court should waive the requirement of
following Form "J".
prejudice to respondent is shown, then the court might at its
discretion condone non-compliance with the Rules.
Tonder who appeared for respondent (against whom a default judgment
was granted) drew my attention to the fact that respondent filed with
the Registrar a notice of intention to oppose the application on the
5th November 1999. He therefore argued that had a proper Notice of
Motion been used in bringing this application, the matter would not
have been put on the roll on the 8th November 1999. Even if it had
been, the matter would not have proceeded because that date of
hearing depended on failure to file the Notice of Intention to Oppose
with the Registrar.
no doubt that Mr Van Tonder is right. That is precisely the reason Mr
Justice Mofolo postponed this matter to a date to be arranged with
the Registrar. At Mr Khauoe's request, Mofolo J directed respondent
to pay costs.
this Notice of Motion of applicant was (in many respects) an
irregular document within the meaning of Rule 30. failure to attend
the court hearing despite the invitation to do so was in the eyes of
the court unacceptable behaviour. Granting an order of costs against
respondent was the proper thing to do in the circumstances.
that there was failure to comply with Rule 8(7) of the High Court
Rules 1980 and Form "J" thereof was not in issue because it
was not raised. Had Mr Van
respondent, on the 8th November 1999, appeared, he could have
legitimately raised it and obtained an order of costs in his favour.
This should have been the case because Rule 8(9) provides:
"Iftherespondentdoes not...notify the applicant of his intention
to oppose, the applicant may place the matter on the roll for hearing
by giving the Registrar Notice of Set Down before noon on the court
day preceding the day on which application is to be heard."
this application should not have had a notice of hearing before
respondent had been given an opportunity to respond.
substance to what the Chief Executive of respondent said at paragraph
3 of his supporting affidavit to the application for rescission of
judgment where he says respondent having "filed their Notice of
Intention to Oppose on the 5th November 1999.... Parties to this
matter became aware that the matter was an opposed matter, so that
appropriate steps and procedures, pursuant to that Notice, had to be
followed". By appropriate steps the Chief Executive means steps
that appear in Form "J" of the Rules of Court. In
particular respondent was entitled to be given 14 days within which
to respond to applicant's averrments. Applicant seems to have taken a
view of the Rules that favours him exclusively although the Rules are
balanced in order to level the playing field.
made much of the fact that (without notifying respondent) he took a
judgment three days after the 14 days within which respondent was
expected to have filed opposing papers. I need only point out that
this did not entitle applicant to take a default judgment without
giving respondent any notice. In action proceedings applicant should
have served respondent with a Notice to File Plea, before respondent
could be barred. It is therefore clear respondent had not been barred
from filing opposing papers. The delay could only lead to an adverse
order as to costs if the matter had to be postponed on the date of
hearing, because respondent wanted to file opposing papers. In other
words there should be no appearance before a judge without inviting a
respondent who has signified an intention to oppose.
for applicant in opposing the application for rescission of judgment
argued that his notice of application was as near as possible to Form
"J". In his view he was not in breach of Rule 8(7). I have
already said this is not the case, applicant's Notice of Motion does
not comply with this sub-rule. It only says when the matter will be
heard, what the applicant's claim is and that applicant's affidavit
will be used in support of the application. It lacks five other
essentials that Form J contains. I will later go into the reasons why
these other essentials have been deemed necessary in the Form "J"
and in the Rules of Court. Sufficeth to say that the Notice of Motion
is directed to a person who may not have any training in law. Hence
the many warnings and notices that the respondent is given in the
Notice of Motion.
to me therefore that the audi alteram partem principle having been
"J" of the Rules of Court cannot be easily ignored. Not
only does Form "J" apply many of the rules of court, it
also ensures fairness in the granting of default judgments. It is by
no means unusual for parties who have obtained a default judgment to
resist attempts to rescind it. They go so far as to say every person
is presumed to know the law when they resist applications for
rescission of judgment. Courts are often inclined to uphold the
principle of audi alteram partem by rescinding default judgments. In
fact Atkin LJ in the Privy Council faced with the submission that
every person is presumed to know the law said there is no such
presumption. Dealing with a default judgment he said:
"There is here no evidence to say that the defendant at the
time...had any knowledge of his right to set the judgment aside. I
cannot think that there is a presumption that he knew of his
remedy.... For my part, I am not prepared to accept the view that
there is a presumption that any one, even a judge knows all the law.
There is a rule that ignorance of the law does not excuse, a maxim of
very different scope and application." -Evans v Bartlam 
AC 473 at page 479.
nevertheless insist on discipline in the way civil proceedings are
conducted. To achieve this they are obliged to use their coercive
powers of granting default judgment and in fitting cases refusing to
rescind them. In granting default judgments courts have to ascertain
that there was service of court processes and of all notices that are
built into the process of granting default judgments.
for applicant correctly pointed out that respondent was obliged to
applicant with his Notice of Intention to Oppose the application.
Indeed he should have done so. Unfortunately the Notice of Motion did
not warn applicant that he should serve applicant with the Notice of
Intention to Oppose the application as it should have done - had Form
"J" been followed. Consequently respondent merely filed the
Notice of Intention to Oppose with the Registrar and ended there.
That being the case applicant is blaming respondent for applicant's
own failure to abide by the Rules of Court.
Justice Mofolo had specifically postponed the matter on the 8th
November 1999 and mulcted respondent with costs for failing to be in
court although he had been warned to be present. This had been done
to give respondent an opportunity to file his answering affidavit.
The matter had been "postponed to a date to be arranged by the
Registrar". Mr Khauoe during argument informed me that he had
discovered the Notice of Intention to Oppose in the judge's file on
the 8th November 1999 and therefore he was obliged to ask that the
matter be postponed with costs. I do not understand how Mr Khauoe
came to set down the matter because Rule 8(3) provides:
"Where no answering affidaivt nor any notice referred to in
sub-rule 10(c) has been delivered within the period referred to in
sub-rule 10(b) the applicant may within four days of the expiry of
such period apply to the Registrar to allocate a date for hearing of
respondent's Chief Executive in his affdiavit supporting the
rescission of judgment application at paragraph 5 says he checked the
Motion Roll of the 22nd
1999 and found that this matter did not appear in the Motion Roll as
it should have, if applicant had been allocated a date by the
Registrar. This fact is not denied. All applicant says is that
respondent never served him with any papers (a fact which is quite
true) but which does not meet respondent's querry.
to me that if I am to throw the book of rules at respondent at the
instance of applicant, then applicant must have fully complied with
the rules. Court process that do not conform to the most elementary
rules of court should be rejected out of hand by the Registrar. In
discharging this function, the Registrar must act bona fide in
determining whetherthe process filed in his registry is receivable in
terms of the Rules of Court. He or she must (of course) not take upon
himself a decision which should properly be the function of the
court. —See Peskin v Wisdom N.O. 1948(3) SA730 at 731. If the
papers are in order in specified categories of cases in England,
default judgments can even be entered by proper officers in the
registry of some divisions of superior courts in the same way as
clerks of court in our country enter default judgments in the
Magistrate's Court. —See Jacob et al The Supreme Court Practice
1982 at page 136 and 137. It should not therefore be forgotten that
in granting a default judgment the grantor of such a judgment in most
cases does not deal with the merits. The court in the granting of a
default judgment was, as Lord Atkin noted in Evans v Bartlam 
AC 480, giving expression of its coercive power because there has
been failure to follow rules of procedure. The view I take is that
there should be even-handedness in treating
sides in respect of breaches of rules of procedure.
I am not
persuaded that respondent's conduct amounts to culpable
remissiveness. Respondent should however have done better than it
did, in the way it responded to applicant's application.
approached this granting of this default judgment from the premise
that respondent was as good as not represented. In actual fact Mr Van
Tonder who signed the Notice of Intention to Oppose is an advocate as
more fully appears in his certificate of urgency. It is true that Mr
Van Tonder is not practising law as he is an employee of respondent.
When I asked him why he did not attend court on the 8th November
1999, he told this court that he might have not kept this matter in
mind because of his other duties. The respondent did not in the
affidavit supporting the application explain why he did not attend
the hearing on the 8th November 1999. I however accept that as the
Chief Executive Officer stated, he must have expected applicant not
to proceed with the matter after he had filed a Notice of Intention
to Oppose. This should have been the position had the rules been
followed by following Form "J" in bringing this
has not furnished security for costs as he was expected to in terms
of Rule 27(6)(b). This was a serious omission if this application was
being made in terms of Rule 27. In view of failure to comply with the
Rules by applicant this application could well be governed by Rule
45(1)(a) because judgment was erroneously granted in the absence of
that before respondent applied for rescission of judgment, he had
already filed an opposing affidavit which disclosed what might be a
defence to applicant's claim. To that extent this application for
rescission of judgment would seem to be in order.
that legal practitioners employed by Statutory Corporations may
appear before our courts and take instructions direct from their
employers—See Section 42 of the Legal Practitioners Act 1983.
They have been permitted to do legal work of attorneys on an ad hoc
basis. Yet practising attorneys are expected to have offices that are
manned full-time. The staff of such attorneys know what to do with
pleadings and other court processes that are filed from time to time
as litigation progresses. Statutory Bodies do not always have staff
assigned to litigation, nor are they expected to. It often happens
that court process (where they represent themselves) is received and
not brought to the attention of professionally qualified legal
practitioners. This happened in the case of Computer Systems &
Networks (Pty) Ltd. v Maseru City Council 1991-1996 LLR 82. In that
case, like in this one, the legal practitioner ended not being
present on the date of hearing. In that case, when a default judgment
had been taken, the ad hoc practitioner concerned did not have an
adequate familiarity with the Rules of Court. This is the case here
argument Mr Van Tonder said he had been assigned other duties on the
date of hearing. Consequently he could not remember the date of
hearing. That was the reason for his non-attendance. It seems to me
that Statutory Bodies that use their
as ad hoc legal practitioners are taking a risk which they might
sometimes regret. The practice of law is a full-time occupation.
light of what I have said above, I feel I have to grant respondent's
application for rescission of judgments. But as I am not particularly
happy with applicant's manner of obtaining this default judgment, I
feel obliged to order that each party should pay its own costs.
of judgment is granted, there is no order as to costs.
applicant : Mr KT Khauoe
respondent : Mr T van Tonder
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