COURT OF APPEAL OF LESOTHO
NTSETSELANE FIRST RESPONDENT
THEKO SECOND RESPONDENT
Van den Heever J.A.
appeal in this matter was dismissed with costs on the 6th of October,
reasons to follow. I proceed to give them now.
On 7 July
1994 the appellant launched an allegedly urgent ex parte application
and was granted a rule nisi operating as a temporary
rule was discharged with costs on 11 February 1996.
On 3 June
1996 the appellant again launched proceedings by way of Notice of
Motion in which she sought, again ex parte, a rule calling
respondent to show cause (without any return date being specified)
order granted.... on the 23rd day of February, 1996 (sic) with costs
shall not be rescinded and the matter proceed ordinarily
in a proper
shall not be stayed pending the outcome of the Rescission
Application" with prayer (b) (as typed, but a c inserted
above this) to "operate as interim order with immediate
application was opposed. It came before Guni J, who on 11 February
2000 dismissed the application for rescission, with costs
scale as between attorney and client. It is against the dismissal of
that application that the appeal was brought. No appeal
in the relevant notice against the grant of costs on a punitive
scale, nor in argument before us.
application itself, the opposing affidavits and the reasons for
criticism. Merely as examples, the trial judge went quite outside the
issues properly raised on the papers before her. The
attorneys inserted into the file an interim court order granted to
the appellant in a different matter against a respondent
not party to
the proceedings before Guni J, with no explanation of why this was
done, and the respondent himself i.a. deposed as
points in limine
the appellant "is in contempt of the order of this Honourable
Court which dismissed her application, the rescission
of which she
seeks herein" with no allegation of fact on which to base this
"This application is contrary to rule 27(6)(b) of the High
Court Rules 1980 as Applicant has not furnished security"
despite the fact that this Rule has no bearing on the matter in
these and many other flaws in both the opposition papers and the
reasons for judgment of the court a quo, dismissal of the
to rescind the earlier order was inevitable. The appellant made out
no case for the relief she sought.
informing the court what conduct was temporarily interdicted by the
rule, the appellant in her founding affidavit says that the matter
several occasions. She waited to hear from her attorneys, Messrs
Phoofolo & Co, when the matter would be heard. It took her
years to inquire from them, since she did so only on 18 May of 1996.
At their office she was referred to "a Mr. Lehana"
whom she had never had any contact before. He
"informed me and explained to me that on the 23rd February, 1996
on the instructions of Mr. Phoofolo he appeared with Mr.
Justice Guni. He (Mr. Lehana) explained to the Judge that he was
unfamiliar with the matter and asked for a postponement
Pheko for Respondent refused the said postponement. Mr. Pheko prayed
for the rule to be discharged with costs. Justice
Guni granted Mr.
Pheko's prayer and the rule was discharged with costs."
sought help from another lawyer and the rescission applicant was
alleges that her prospects of success are "reasonably good,"
advancing the grounds on which that contention is based
in a single
garbled passage containing minimal allegations of fact and consisting
principally of "legal" argument.
present application for rescission is made at common law. Established
common law grounds for rescission are fraud.justus error
documents have been discovered (again in exceptional circumstances),
judgment has been granted by default (see Erasmus Superior Court
Practice B1 - 307, and the authorities there collected).
application for rescission in the present case rests on none of these
grounds. An attempt was made in oral argument to suggest
basis was negligence of the applicant's legal representative. But no
such case has in fact been made out. It is not necessary
further whether, if proved, the negligence of a party's own legal
representative could properly form the basis of an
reasons the application for rescission had to fail.
this13th day of October 2000.
Appellant: Mr. B.R.M. Masiphole
Respondent: Mr. M. Mafantiri
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