IN THE HIGH COURT OF LESOTHO In the Application
INSTITUTE OF DEVELOPMENT MANAGEMENT Applicant
vBANGANI B. TSOTSI Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice M.L. Lehohla on the 17th
day of May, 1993
On 7th May, 1993 this Court discharged with costs an
application moved by the applicant for :
rescission of a judgment delivered on 17thAugust,
leave to defend the action in CIV\T\93\91.
stay of the execution in the above trial.
In 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 was
dismissed in terms of a judgment dated 14th August,
1992. The Court of Appeal confirmed that judgment. To this extent
application is both specious and misconceived.
It is misconceived because it ignores the vital effect
of the statement contained at page 5 of the judgment of 14th August,
"It is the effect and purpose of Rule 34 that once
this rule has been pleaded successfully the party against whom the
has been granted will not be entitled to appear and
cross-examine witnesses. See page 416 of Hebstein and van Winsen
The above statement paraphrased from a statement
referred to in Hebstein and van Winsen is extracted from Langley
vs Williams 1907 TS 197 according to a reference in the footnote
of the Learned Authors' book.
Thus this disposes of the applicant's claim that the
matter relating to proof of damages by the respondent was set down
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)
its attorneys were not served with a Notice of Set
In supporting his argument he indicated that after the
initial Notice of Set Down and subsequent postponement which led to
of 14th August, 1992 being read in open court the
applicant's attorney left, no doubt feeling he was no longer part of
as the authority in Van Winsen above showed that his
further participation would serve no purpose as that authority
he would not be entitled to cross-
3 examine the plaintiff and his witnesses.
The applicant on this occasion relies on the affidavit
of one Tefetso Selebalo who is its Acting Director. His affidavit
highlight the effect of ill blood between the Regional
Director and Country Director on the running of the applicant and
the fact that it is due to this animosity between these
Directors that resulted in the applicant incurring costs and being
with execution of a judgment granted for the
plaintiff\respondent in the applicant's absence.
On this aspect of the matter I would view with great
favour the respondent's attorney's submission that the internal
branches of the applicant described in paragraph
4.4 are irrelevant and vexatious and ought to be struck out in terms
of Rule 29(5).
It is common cause that Selebalo in bringing this
application relies on Rule 45(1) in the averment that the applicant
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 or vary:-
an order or judgment erroneously sought or
erroneously granted in the absence of any party
an order or judgment in which there is anambiguity
or a patent error or omission, butonly to the extent of such
ambiguity, erroror omission,
an order or judgment granted as a result of amistake
common to the parties".
This Rule is identical with Rule 42(1) of the South
Dr. Tsotsi submitted that none of the factors set out
above applies therefore no case for rescission has been made by the
He 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
Court, cannot be altered by that Court".
See Brits and Others vs Engelbrecht and Others 1907 TS
In elaborating on the above statement Dr. Tsotsi invited
the Court to Firestone South Africa(Pty)Ltd vs Genticuro A.G. 1977(4)
298 at 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
it has 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 has ceased".
At page 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,
or otherwise uncertain, so as to give effect to its true
intention, provided that it does not thereby alter the sense and
substance of the judgment or order".
There cannot be any ambiguity, obscurity or omission in
the express statement of the judgment delivered on 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
has been granted will not be entitled to appear and
See p.5 of that judgment read with Ex-Parte Willis
and Willis 1947(4) SA 740 at 742-3.
It was further submitted on behalf of the respondent
that even if it is correct that the Court relied on wrong authority
at its decision, or that it is apparent that the
applicant had a bona fide defence, or that respondent did not
tender his services to the applicant after termination of his
services, all these could not entitle
the Court to alter its decision
as it would be functus officio in any case apart from the fact
that the respondent denies these allegations including the averment
by the applicant that its attorneys
were not served
6 with a Notice of Set Down.
In this regard Dr. Tsotsi relying on Postmasburg
Motors (EDMS) BPK vs Peens en Andere 1970(2) SA 35
extracted for consideration the following words :
"A Court which issues an order may be approached to
clear up an ambiguity therein but no evidence is admissible to
alter or add to the contents of the Court's order".
Mr. 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 the principle of urgency.
Unfortunately he did not state the
authority he relied on for this somewhat novel proposition.
Rule 8(18) as I read it does not circumscribe the period
during which a respondent is entitled to anticipate a rule grantedex-parte as long as such anticipation is embarked on with a
minimum 48 hours' notice to the other side. Without any reliable
the contrary I don't think that a charge would ever be
well conceived that a respondent has exhausted the maximum period
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
In an 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
Sub-rule (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 as stated aforesaid, the respondent may do so
If the defendant's reluctance to take any move in
CIV\T\93\91 was something bizarre the same attitude by it in its
application now is most bewildering.
In the instant application the respondent filed his
answering affidavit on 17th March, 1993.
In terms of Rule 8(11) the replying affidavit should
have been filed within 7 days i.e. on 24-3-1993.
This was not done despite request.
On 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
and subsequent failure by the applicant to comply with an order
compelling compliance therewith by not later than 30th April, 1993.
The move to anticipate was only embarked on when the
date proposed by the Registrar for hearing happened to be fairly
15-6-93. Thus the respondent thought differently and
decided to utilize his right to have the matter brought to finality
before Court. 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?
sense allow the applicant to try and take advantage of the
respondent's generosity? I think not; for such would be to allow
applicant to abuse the other party's good intention to accommodate
Needless to say the replying affidavit was only filed on
6-5-93. This alone knocks the stuffing out of the argument that the
be allowed to take its course.
Concerning 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
be well-founded because the application was indeed made
in the answering affidavit which was filed within the period allowed
out that the averment contained in 4.4 of founding
affidavit be struck out. It would be totally uncalled for to require
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 formalities as appointing attorneys and
giving addresses for the service of documents in
(that)the parties would be required to go through all the same
formalities again with all the concomitant and unnecessary
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
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".
I am satisfied that the rule requiring application to
strike out to be made within 7 days has been complied with.
Parties' respective counsel agree that the application
is in terms of Rule 45 "especially sub-paragraph (a)" to
10 Nathane's words.
Mr. Nathane referred to cases quoted by Dr.
Tsotsi and said they referred not to sub-paragraph (a) but (b).
It is amazing that at this stage there should be this
nitpicking whereas at the beginning there was no specification
by the applicant
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 an error.
Another argument advanced on behalf of the applicant was
that the respondent didn't render any services or tender any services
which he was entitled to a salary. But evidence was led in this
Court and the respondent proved his damages including production
schedule of attempts he made to mitigate damages. Furthermore inHazis 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
the damage which he actually suffered is upon the one who
asserts that those reasonable steps were not taken."
Further, I do not understand how a man who has been
unlawfully dismissed and seeks damages instead of re-instatement
should be required
to tender 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
the respondent failed to tender those services referred
to. SeeHazis above.
Mr. 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 vs Die Afrikaanse Pers Publikasies (EDMS) BPK
1971(3) SA 455 at 462 that :
"The striking out of a defendant's defence is
extremely drastic step which has the consequence that
the action goes forward to trial as an undefended
(underscored for emphasis)
It should be clear therefore that it is not without
cause that the authorities regard the striking out of a defendant's
an extremely drastic step for the trial proceeds as an
undefended matter which is another way of saying plaintiff's
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
The applications for rescission, stay of execution and
leave to defend are discharged with costs.
JUDGE 17th May, 1993
For Applicant : Mr. Nathane For Respondent : Dr. Tsotsi
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