HIGH COURT OF LESOTHO
Application of :
OF DEVELOPMENT MANAGEMENT Applicant
B. TSOTSI Respondent
the Hon. Mr. Justice M.L. Lehohla on the 17th day of May, 1993
May, 1993 this Court discharged with costs an application moved by
the applicant for :
of a judgment delivered on 17th August, 1992
to defend the action in CIV\T\93\91.
of the execution in the above trial.
seeking to defend the action in CIV\T\93\91 the application tends to
be indifferent to the fact that the action in that trial
dismissed in terms of a judgment dated 14th August, 1992. The Court
of Appeal confirmed that judgment. To this extent therefore
application is both specious and misconceived.
misconceived because it ignores the vital effect of the statement
contained at page 5 of the judgment of 14th August, 1992
"It is the effect and purpose of Rule 34 that once this rule has
been pleaded successfully the party against whom the ruling
granted will not be entitled to appear and cross-examine witnesses.
See page 416 of Hebstein and van Winsen above".
statement paraphrased from a statement referred to in Hebstein and
van Winsen is extracted from Langley vs Williams 1907
according to a reference in the footnote of the Learned Authors'
disposes of the applicant's claim that the matter relating to proof
of damages by the respondent was set down without
reference to the
former. In any case Dr. Tsotsi in his well prepared set of heads of
argument at paragraph 8 argued successfully
in showing that the
applicant "states (wrongly) that its attorneys were not served
with a Notice of Set Down.....". In
supporting his argument he
indicated that after the initial Notice of Set Down and subsequent
postponement which led to the judgment
of 14th August, 1992 being
read in open court the applicant's attorney left, no doubt feeling he
was no longer part of the proceedings
as the authority in Van Winsen
above showed that his further participation would serve no purpose as
that authority indicates that
he would not be entitled to cross-
the plaintiff and his witnesses.
applicant on this occasion relies on the affidavit of one Tefetso
Selebalo who is its Acting Director. His affidavit seeks to
the effect of ill blood between the Regional Director and Country
Director on the running of the applicant and bemoans
the fact that it
is due to this animosity between these Directors that resulted in the
applicant incurring costs and being faced
with execution of a
judgment granted for the plaintiff\respondent in the applicant's
aspect of the matter I would view with great favour the respondent's
attorney's submission that the internal squabbles between
the applicant described in paragraph 4.4 are irrelevant and vexatious
and ought to be struck out in terms of Rule 29(5).
common cause that Selebalo in bringing this application relies on
Rule 45(1) in the averment that the applicant is entitled
to have the
previous judgment rescinded. See Founding Affidavit at 4.7.
That rule says :
"The Court may in addition to any other powers it may have mero
motu or upon the application of any party affected, rescind
order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby,
order or judgment in which there is an ambiguity or a patent error
or omission, but only to the extent of such ambiguity, error
order or judgment granted as a result of a mistake common to the
is identical with Rule 42(1) of the South African Rules.
Tsotsi submitted that none of the factors set out above applies
therefore no case for rescission has been made by the applicant.
accordingly referred the Court to p.468 of Hebstein and van Winsen
3rd Ed. where it is stated :-
"The rule sets out the exceptions to the general principle that
a final order, correctly expressing the true decision of the
cannot be altered by that Court".
and Others vs Engelbrecht and Others 1907 TS at 880-1.
elaborating on the above statement Dr. Tsotsi invited the Court to
Firestone South Africa(Pty)Ltd vs Genticuro A.G. 1977(4) SA
306 where Trollip J.A. in illustrating the fact that Rule 45(1)
constitutes an exception to the general rule said :-
"The general principle now well established in our law, is that
once a Court has duly pronounced a final judgment or order,
itself no authority to
correct, alter or supplement it. The reason is that it thereupon
becomes functus officio; its jurisdiction in the case having been
fully and finally exercised, its authority over the subject matter
307 Trollip J.A. further describes the exceptions referred to above
as follows :
"The Court may clarify its judgment or order, if, on a proper
interpretation, the meaning thereof remains obscure, ambiguous
otherwise uncertain, so as to give effect to its true intention,
provided that it does not thereby alter the sense and substance
the judgment or order".
cannot be any ambiguity, obscurity or omission in the express
statement of the judgment delivered on 14th August, 1992 that
"it is the effect and purpose of Rule 34 that once this rule has
been pleaded successfully, the party against whom the ruling
granted will not be entitled to appear and cross-examine witnesses".
of that judgment read with Ex-Parte Willis and Willis 1947(4) SA 740
further submitted on behalf of the respondent that even if it is
correct that the Court relied on wrong authority in arriving
decision, or that it is apparent that the applicant had a bona fide
defence, or that respondent did not tender his services
applicant after termination of his services, all these could not
entitle the Court to alter its decision as it would be
officio in any case apart from the fact that the respondent denies
these allegations including the averment by the applicant
attorneys were not served
Notice of Set Down.
regard Dr. Tsotsi relying on Postmasburg Motors (EDMS) BPK vs Peens
en Andere 1970(2) SA 35 extracted for consideration
"A Court which issues an order may be approached to clear up an
ambiguity therein but no evidence is admissible to contradict,
or add to the contents of the Court's order".
Nathane for the applicant held in question the propriety of the
respondent waiting for almost two months without a stir and
thereafter suddenly anticipating the return date, and termed this
abuse of Rule 8(18) and submitted that this goes contrary to
principle of urgency. Unfortunately he did not state the authority he
relied on for this somewhat novel proposition.
8(18) as I read it does not circumscribe the period during which a
respondent is entitled to anticipate a rule granted ex-parte
as such anticipation is embarked on with a minimum 48 hours' notice
to the other side. Without any reliable authority to
the contrary I
don't think that a charge would ever be well conceived that a
respondent has exhausted the maximum period within
which he can
anticipate the rule. It seems to me that the respondent has this
right to anticipate as long as
7 a rule
obtained ex-parte against him subsists.
attempt to illustrate that the applicant is not entitled to behave as
if butter would not melt in its mouth Dr Tsotsi referred
the Court to
Rule 8(10) and (11) stipulating the periods within which respective
parties are to file their answering and replying
(13) stipulates the periods within which an opposed application may
be filed and further states that :
"..........If the applicant fails to apply for such allocation
(of a date by the Registrar) within the appropriate period
aforesaid, the respondent may do so immediately upon expiry thereof".
defendant's reluctance to take any move in CIV\T\93\91 was something
bizarre the same attitude by it in its so-called urgent
now is most bewildering.
instant application the respondent filed his answering affidavit on
17th March, 1993.
of Rule 8(11) the replying affidavit should have been filed within 7
days i.e. on 24-3-1993.
not done despite request.
26-4-93 the respondent tried to awaken the applicant not only to its
first failure to reply within 7 days but also to the next
subsequent failure by the applicant to comply with an order
compelling compliance therewith by not later than 30th April, 1993.
to anticipate was only embarked on when the date proposed by the
Registrar for hearing happened to be fairly distant i.e.
Thus the respondent thought differently and decided to utilize his
right to have the matter brought to finality quickly
Can it really lie in the applicant's mouth to question the hurry with
which the respondent is bringing this matter
to Court for hearing
regard being had to the fact that the matter was brought on urgent
basis by the applicant in the first place?
Can good sense allow the
applicant to try and take advantage of the respondent's generosity? I
think not; for such would be to
allow the applicant to abuse the
other party's good intention to accommodate it.
to say the replying affidavit was only filed on 6-5-93. This alone
knocks the stuffing out of the argument that the matter
be allowed to
take its course.
the applicant's argument that the respondent's application to strike
out vexatious and argumentative averments does not
comply with Rule
29(5) I find that it does not seem to
well-founded because the application was indeed made in the answering
affidavit which was filed within the period allowed and
that the averment contained in 4.4 of founding affidavit be struck
out. It would be totally uncalled for to require
the respondent to
make a separate notice of set down for the purpose. See Khoboko vs
Khoboko CIV\APN\402\86 at p.5 where reference
is made to Munnik J's
dictum in Yorkshire Insurance Co. Ltd vs Reuben 1967(2) SA at 265.
The learned judge had this to say with
regard to forms of notices in
interlocutory matters :
"There is to my mind a substantial difference between an
application being brought on notice and an application brought on
notice of motion. It could never have been intended, when parties are
already engaged in litigation and have complied with such
as appointing attorneys and giving addresses for the service of
documents in the proceedings, (that)the parties would
be required to
go through all the same formalities again with all the concomitant
and unnecessary expense.
I am satisfied that the use of the word "notice" in
sub-rule (11) (read 5 and or 21 to Rule 8) as opposed to the "notice
of motion" in the . other sub-rules to Rule 6 indicates clearly
that interlocutory and other applications incidental to pending
proceedings were not intended to be brought by way of formal notice
of motion in the same way as applications initiating proceedings".
satisfied that the rule requiring application to strike out to be
made within 7 days has been complied with.
respective counsel agree that the application is in terms of Rule 45
"especially sub-paragraph (a)" to put it
Nathane referred to cases quoted by Dr. Tsotsi and said they referred
not to sub-paragraph (a) but (b).
amazing that at this stage there should be this nitpicking
whereas at the beginning there was no specification by the
as to what particular provision of the law was relied on for applying
for rescission. The common factor between (a) and
(b) is the question
of error in the Court's judgment. Both cases referred to do refer to
argument advanced on behalf of the applicant was that the respondent
didn't render any services or tender any services for
which he was
entitled to a salary. But evidence was led in this Court and the
respondent proved his damages including production
of a schedule of
attempts he made to mitigate damages. Furthermore in Hazis vs
Transvaal and Delagoa Bay Investment Co. Ltd 1939
AD 372 at 388 it is
said by Stratford C.J. :
"Both on principle and on precedent the burden of proving that
the claimant for damages did not take reasonable steps to mitigate
the damage which he actually suffered is upon the one who asserts
that those reasonable steps were not taken."
I do not understand how a man who has been unlawfully dismissed and
seeks damages instead of re-instatement should be required
services to the very employer who
manifested its attitude that it does not require his services. In any
case the onus is on the applicant to prove that the respondent
to tender those services referred to. See Hazis above.
Nathane submitted that provisions of Rule 34(9) fall short of the
requirement that the defendant could not cross-examine the
plaintiff's witnesses. But unfortunately he supplied no authority to
gainsay what clearly appears in Wilson's case i.e. Wilson
Afrikaanse Pers Publikasies (EDMS) BPK 1971(3) SA 455 at 462 that :
"The striking out of a defendant's defence is an extremely
drastic step which has the consequence that the action goes forward
to trial as an undefended matter".
(underscored for emphasis)
be clear therefore that it is not without cause that the authorities
regard the striking out of a defendant's defence
as an extremely
drastic step for the trial proceeds as an undefended matter which is
another way of saying plaintiff's witnesses
are not cross-examined.
If striking out is so serious it stands to reason that dismissal is
even more so, for Rule 34(9) says
"...................failing such compliance, (the Court) may
dismiss the claim or strike out the defence".
applications for rescission, stay of execution and leave to defend
are discharged with costs.
Applicant : Mr. Nathane
Respondent : Dr. Tsotsi
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