IN THE HIGH COURT OF LESOTHO
the matter between:
QUINTINO GONCALVES VICENTE Applicant
LESOTHO BANK LIMITED Respondent
Delivered by the Honourable Mr. Justice T. Monapathi on
the 2nd day of February 2000
This was an application for rescission of a judgment on
the basis that it was granted by mistake common to all the parties.
Parties herein were the same under the above case number
in a matter (original application) in which judgment was entered
the Applicant on the 21st October 1999. It was that judgment
which the Applicant wanted to be rescinded, in the present
in terms of Rule 45(1)(c). He said there had been a
mistake as a result of which the judgment was decided on facts, a
which had been supplied by the Respondent and "with
which Respondent subsequently concurred."
It sufficed to spell out the prayers in the original
application . They were in part, as follows::
Dispensing with the normal periods of notice prescribed
by the Rules.
Interdicting the respondent from selling the
Applicant's immovableproperty consisting of business premises on
a portion of the plotbearing Land Act Lease number 23123-213
situate at Maputsoe, in -the Leribe district which portion
measures 1485 square metres savepursuant to a judgment by a
court of competent jurisdiction againstthe Applicant in favour
of the respondent.
Interdicting the sheriff and deputy-sheriffs of this
Honourable Courtfrom acting upon any writ of execution or other
similar instrumentpurporting to authorise such sale.
Directing the respondent to pay the costs of this
Granting the applicant further or alternative relief."
I have underlined the plot number because it became
relevant in this application. Applicant said at paragraph 4 of the
that it was after judgment was reserved in the
original application that he was able to ascertain the true facts.
This led him to
launch another application namely CIV/APN/468/99, in
which Applicant sues the Respondent and two others for release of a
lease number 23123-213 (in the name of Mooki Molapo) and
In this CIV/APN/468/99 reference is made to
investigations made while the judgment in original application was
reserved. This investigation
revealed that the case number between
the First Respondent and one Mooki Molapo in respect of which a writ
was issued was in Civil
Trial 494 of 1992. The writ that was
generated by the judgment in the said trial related to the property
on plot number 22124-001
Maputsoe and not 213123-213 as Applicant
"had imagined". This meant that he wrongly believed that
213123-213 was the disputed
plot hence the basis of the original
As Applicant said his investigations further revealed
that the summons commencing action in the said trial was an ordinary
for money lent and advanced and had had nothing to do with
any mortgage bond. The writ which was annexure GCV "3" to
papers was consequently issued against Mooki Molapo only
after a nulla bona return had issued out in respect of his movable
This was the extent of the mistake within whose premise the
original application was granted. The original application ought
to be rescinded. The Applicant submitted so.
The mistaken version seems to have emanated from the
correspondence between the First Respondent and the Third Respondent
the said plot 23123-213 and the further aspect of
foreclosure of the mortgage bond. These things did not concern the
above plot but
a different one. The Applicant said in the present
application that he had no reason to believe that the Respondent's
deliberately misleading him in giving him the
information which formed the basis of the original application and: -
"That in concurring therein they were equally
deliberately misleading the above Honourable Court".
It would be difficult on my part to conclude that there
was any intention to deceive the Court. This was more so when regard
to the fact that the mistaken reference to the plot by the
Applicant had arisen as long ago as in the correspondence between the
Third Respondent's legal department and Mooki Molapo's attorneys as
the judgment in the original application shows. So that certainly
mistake as it appears has its origins in the exchange of that
correspondence even before the hearing of the original application.
As long as it became a mutual mistake it was unfruitful to inquire as
to who caused the mistake.
I noted that before the Court it was the Applicant who
had stated on affidavit and revealed all the details which were the
resulted in the judgment. Significantly, Respondent had
had no affidavit filed but only took points of law. What was
my inquiry was how the mistake affected the judgment in
the original application and particularly whether there were good
upon which it could be invalidated.
Counsel for Applicant spoke about the likely prejudice
to the Applicant if and when the judgment in the original application
to stand. That there would be a plea of re judicata
against the Applicant. I may say instantly that if the object of the
sought by the Applicant in the original application was to
prevent the First Respondent from foreclosing on plot No. 23123-213
extreme likelihood was that the parties would never come back and
fight over the same issue more particularly over that plot. That
of the Applicant about res judicata was indeed unfounded. By a
minimum diligence on his pan he should have detected the mistake
about the plot over which he had no interest. And yet he bought the
Respondent to Court.
That writ, annexure QCV "3", should have shown
Applicant the true facts.
His contribution to the problem by bringing the
Respondent to Court seemed to override any remissness on the part of
It was a result of negligence on his part. The
dismissal of his application, which by his own confession, he had no
cause to bring
about, was on the basis that he had no rights over the
plot at all nor to the extent that he could prevent execution over
This remained the situation to the extent that the
status quo would remain as it was before the application. In short no
the Applicant were affected.
The bank would not foreclose because the cause of action
namely over money lent and advance was different. Even if it did that
not concern him as far as plot no. 23123-213 was concerned. The
judgment in the original application concerned rights of the
over the said plot. Hence Mr. Matooane for the First
Respondent submitted that the application became a futile and an
when the true facts were considered. Why would the
judgment in the original judgment then threaten any rights of the
shows that the present application was more of an
academic exercise than a genuine fight over real rights.
I agreed with Mr. Sello that if appeal was to be filed
on the premise of the admittedly wrong facts or even supposing it was
an issue that emerged on the wrong facts the appeal court would
probably decide that this was a matter for rescission. But in my
respectful view such a Court would go further and ask as to whether
there was any interest and what interest the Applicant had in
disputed rights and future litigation. The basis of an application
for rescission is that litigation is sought to be perpetuated
is normally the intention of one of the parties). It is because
rights have to be finally decided. The Applicant has no further
rights in the judgment nor did he profess to have any in the future
or in the past. That Court on appeal would find that the exercise
an academic one. On
6 this ground the application ought to be dismissed.
I would answer in the way I did above to Mr. Sello's
submission that should the Applicant decide to institute proceedings
would decide that the matter was res jusicata. That
furthermore the effect would be that by reason of the judgment in the
application the Applicant's rights would have been closed
out. One cannot imagine (again by Applicant's own confession), that
rights would be disputed by the Applicant over this plot No.
213123-213. Isn't the submission actually inviting a debate to
an academic exercise? What business would the Court have to
buttress such an exercise? On this ground the application was
not to have had any merit.
As I saw it the dispute in the original application was
about the right of a third party (the Applicant) to prevent the
from foreclosing on a bond when the mortgagor had
defaulted. Furthermore whether an agreement, of a sale, between the
(Applicant) and mortgagor of a portion of the mortgaged
land, where no transfer had been passed in favour of the third party
that third party the right to interdict foreclosure over the
whole property. Once the mistake over the plot was discovered this
could not be revisited. Why would the Applicant pursue a
matter which in reality he would have no interest.
The mistake over which is sought to ground the
rescission could have been (and it was) in reference to the plot
and that there was (in fact) no foreclosure but a
prior rula bona return over movables followed by a writ over
This had to be repeated. Mr. Matooane submitted
in that regard that the Applicant still had to prove that there was a
in terms of the law of contract and in addition a
causative link between the mistake and the granting of the order of
the latter Counsel referred the
Court to the book THE CIVIL PRACTICE OF THE SUPREME
COURT OF SOUTH AFRICA (Herbstein and Van Winsen) 4th edition by M.
Dendy at pages
697 to 698. The authors of the work speak about a
mistake common to the parties and refer to the above requirements as
by Mr. Matooane. They say:
"This requires that the mistake to relate to and be
based on something to be decided by the Court at the time."
And they referred to the case of TSHIVASE ROYAL COUNCIL
AND ANOTHER V TSHIVASE AND ANOTHER 1992(4) SA 852(A) at 863AD.
The brief facts of the TSHIVASE case were interesting.
While a dispute over chieftainship rights of the Venda tribe between
and Kennedy Tshivase in the Supreme Court was pending,
the President of Venda in terms of certain legislation empowering him
do, referred the dispute to a Council of Chiefs (Khoro) "to
assist with a solution." The Council thereafter met and as
result an advice was given to the President by which John was
appointed chief. The pending application was thereafter finalized
confirming John as chief. When the Council met later for the first
time after its said recommendation of John to the President, it
revealed that there had never been such recommendation as the minutes
did not reflect so. "It would seem this came as a
members." See page 857 F-G.
An application by Kennedy followed, to rescind the
previous final order. It was based on the allegation that the order
had been granted
as a result of a mistake common to both parties viz.
that the Khoro had resolved that John should be the Chief. This was
As a fact, as the Court believed the President had
not recommended John as some chiefs had actually spoken against that.
minutes should have reflected that it was in fact
resolved that the matter be sent back to the tribe to decide. They
had been altered
by the President to reflect the contrary that is
that John be appointed. The altered minutes were circulated. One
official who objected
was charged of insubordination. This was the
position that was revealed in the application for rescission which
filed after the President's death.
As in the present application the issue in the TSHIVASE
case was whether the first judgment was granted as a result of a
to both parties. In the TSHIVASE case both disputants
believed that the Council had recommended that John be made the
Chief. In the
present case the parties had believed that the dispute
was over plot no. 23123-213. On the question of the right of
the original application was also concerned with)
Rule 45(1) envisages firstly that that evidence if known should have
Court to reach a different decision. This was so because
not only should a mistake be relevant it must be fundamental. How can
be fundamental when the present Applicant, by his own admission,
was disputing a right over a plot in which as a fact he had no
If he has no interest to plot 23123-213 then there is
nothing fundamental about his rights.
That substratum of the judgment in the original
application could only have been constituted in favour of the
Applicant if the Applicant
had an interest in the plot which he
claimed. This I say despite the reference to plot 23123-213 in the
notice of motion in CIV/APN/468/99.
It is not a reference to plot no
22124-001. Contrast this with what is contained in paragraph 4.2.1 of
the founding affidavit in
The case of TSHIVASE is to be distinguished in that it
found that the
mistake about the assumption that the Council had
recommended John was the substratum of the judgment. If the Applicant
said he would continue to claim the rights over plot no.
23123-213 that would be a different matter. Perhaps then, there would
a basis for constituting that mistake as a fundamental one. But
would he really claim the same rights on similar set of circumstances
about which he has said (such circumstances) were mistaken? The
answer should be in the negative.
I thought the application should be dismissed with
T. Monapathi Judge
2nd February, 2000
For the Applicant : Mr. Sello
For the Respondent : Mr. Matooane
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