HIGH COURT OF LESOTHO
KARABO MOHAU - Applicant
KHAKALE – Respondent
FOR RESCISION OF JUDGMENT
by the Honourable Mr Justice W.C.M. Maqutu On the 30th June 2005
the following order:
of judgment granted. The matter is postponed to the 23rd June 2005
for hearing whether the estate ought to be administered
in terms of
Administration of Estate Proclamation of 1935 and secondly the
determination of who is heir according to custom. The
validity of the
will also be in issue.
matter is one of the most infortunate. When it came before it
appeared to have been abandoned between 3rd June 2003 and 26th
2005. 1 do not understand why the court record reflects no activity
for almost two years. It
me as a contempt of court application. Contempt of applications are
urgent because the court has to uphold its authority
instantly if it
is disregarded - lest lawlessness prevail. I ordered the first and
second respondent to be arrested immediately
on the basis of what
counsel told me and the several entries on the file.
order which I insisted on its immediate execution was made on motion
day in a crowded motion roll in which I was dealing with
more than 40
maters. This court order dated 23rd May 2005 reads:
"It is ordered that first and second respondent be arrested and
kept in prison until brought before court on 27th May 2005
cause why they should not be committed to prison for six months for
contempt of court."
I made was drastic and the pressure I put on the police to arrest the
respondents was considerable. On the 24 May 2005
was arrested but first respondent could not be found. I was phoned by
the police after working hours to inform
me that the second
respondent was too old and sickly to imprison without being actually
convicted. They pleaded with me that they
would bring him before me
on the 26th May 2005 as the 25th May 2005 was a holiday. I
26th May 2005 Mokoto Khakale (the second respondent) was before court
and Mr Mohau for applicant was also before court. Second
(who seemed to the Court to be an ordinary literate Mosotho) told the
court that he was a law abiding person, he could
not commit the
offence of contempt of court. There could be not order of court in
Lesotho against him without his being given a
chance to give his side
of story. Second respondent said he has never been able to put his
case before court - yet he is being
told to get out of his home by Mr
Mohau. He had contacted Mr Lesuthu The Legal Aid Counsel, but he does
not know what happened.
who brought this application in his own name in his capacity as
executor testamentary said the following about second respondent:
"Mokoto Jeremiah Khakale sought Legal Aid Counsel. Entered
appearance or Notice of Intention to Oppose, but did not take the
matter further. A default judgment was given. It is the one that is
was in fact not correct, the record shows the judgment had been given
by consent on the 25th February 2002. No legal Aid
counsel or any
person or the respondents' side was present. At the time I was not
aware of this but accepted Mr Mohau word that
a default judgment had
The same mistake was made by Peete J in accepting the word of Mr
Mohau that respondents had consented to judgment and granted
by consent. The rules of court clearly provide consent to judgment
should be in writing. See Rule 27 (I) of the High Court
Nevertheless where counsel of the other side consents to judgment the
court grants judgment accordingly.
Mothae v Deputy Sheriff & Others CIV/APN/92/2004 (unreported) the
court referred to Lord Atkin in the House of Lords in
Evans v Bartlam
1937 AC 473 at page 480 where he said about default judgments:
"The principle obviously is that unless and until the Court has
pronounced a judgment upon the merits or by consent, it is
power to revoke the expression of its coercive power where that has
only been obtained by failure to follow any rules of
therefore in my view a very serious matter to claim an adversary has
consented to judgment when he has not - and later claim
was a default judgment. Such a judgment is no more in terms of the
rules of the
cannot stand - especially where the other side was not represented by
a legal practitioner.
objection from Mr Mohau the court made the following order:
as much as Mokoto Jeremiah Khakale wants to be heard before judgment
court appoints Mr Thahlane to present Mokoto Jeremiah
through affidavits, annexure and documents.
court will determine both the merits of respondents dispute and the
issue of rescission of judgment. Issue is validity of
the will and
way of life of testatrix.
Jeremiah Khakale through Mr Thoahlane is given two weeks and is
expected to file opposing papers by the 13th June 2005.
papers from applicant to be filed by the 17th June 2005.
application will be heard on the 20th June 2005.
Aid is directed to pay Mr Thoahlane's fees.
Registrar recorded the same order in her file as follows:-On 26/05/05
Respondent Mokoto Khakale before court to answer contempt
as he was
not taken to prison due to his advanced age, but brought before
observation of the audi alteram partem rule Mr Thoahlane appointed
to represent Mokoto Khakale's case through affidavits annexures
court will determine the merits of respondent's dispute and the
issue of rescission of judgment. Issue is validity of the
the way of life of testatrix.
Khakale through Mr Thoahlane is given weeks and expected to file
opposing papers by the 13th June 2005.
to file replying papers by 17/6/05.
postponed to 20/06/05.
20th June 2005 there was the launching of vision of the vision of the
judiciary in the 21st Century. I am advised all judges
went to this
ceremony. In my case I went later - nevertheless, the matter did not
proceed. Both counsel Mr Mohau and Mr Thoahlane
appeared before me on
the 21st June 2005. The court was in recess and I had agreed to deal
with the matter out of compassion for
the parties and in order to
finalise the matter because the delay was intolerable.
Thoahlane on this 21st June 2005 informed the court that he had
served the applicant with the Answering Affidavit which he had
filed in court. He was in the process of preparing papers for
rescission of judgment. Mr Mohau for applicant needs to reply
second respondent's Answering affidavit. While Mr Mohau conceded he
had to reply to the second respondents affidavit, he felt
respondent should not continue to enjoy the rents of the property. Mr
Mohau said a brief glance of the affidavit of
respondent shows he also claims to be the heir - but he had not read
that affidavit carefully. I took the view that the matter
rather be heard and finalized rather than that the court give an
interim order because second respondent also claims to
be the heir.
Although a postponement had become inevitable Mr Mohau would not
accept a postponement to 8th August 2002 because
the university at
which he lectures would have reopened.
for taking the view that the matter had better be finalized is that
under the Basuto Courts Rules 1961 the matter is immediately
finalized rather than allow it to drag on, while dispossessing the
litigant of the property in his possession. I therefore said
rescind the order and hear the merits of the dispute in two days
time. Mr Mohau felt the matter could be heard in two days
finalized but judgment should not be rescinded. Since we now had the
second respondents Answering affidavit, I made the
following order: -
"Rescission of judgment granted matters postponed to 23rd June
2005 for hearing of whether the estate ought to be administered
terms of the Administration of Estates Proclamation 1935 and secondly
who is the heir according to custom. The validity of the
will is also
giving my legal reasons for rescinding the judgment, it is necessary
to go into the history of this matter.
matter is an old one. Proceedings had been instituted ex parte as an
urgent application on the 4th February 2002. Monapathi
issued the following order:
HEREBY ORDERED THAT:
forms and rules of service be dispensed with on account of urgency.
Rule Nisi be and is hereby issued calling upon Respondents to show
cause (if any) on the 11th day of February 2002.
1st and 2nd Respondents shall not be directed to provide a list of
all tenants presently residing in the rented flats belonging
estate of the late FLORINA LIKOMO KHAKALE at Plot number 13284-079
Lower Thamae Maseru Urban Area.
1st and 2nd Respondents herein shall not be interdicted forthwith
from demanding and or receiving rentals due from rentals
tenants to the flats belonging to the estate of late FLORINA LIKOMO
KHAKALE, situated on plot number 13284-079. Lower
pending the outcome hereof.
1st ad 2nd Respondents herein shall not directed to restore all
rentals (if any) collected from tenants to the flats belonging
the estate of the late FLORINA LIKOMO KHAKALE, situated at plot
number 13284-079 Lower Thamae from the 30th January 2002
1st and 2nd Respondents shall not be interdicted forthwith from
obstructing and or interfering with the Applicant herein
discharge of his functions as the executor of the estate of the
late FLORIDA LIKOMO KHAKALE.
1st and 2nd Respondent shall not be directed to give the Applicant
herein a full account of debtors and creditors to the
estate of the
late FLORINA LIKOMO KHAKALE who would have come to their knowledge
during the time that they have been exercising
control over her
3rd Respondent shall not be directed of offer the Applicant the
necessary assistance he may require in the discharge of
as the executor of the estate of the late FLORINA LIKOMO KHAKALE.
1st and 2nd Respondents herein shall not be directed to pay costs
prayer 1, 2 (b) and (d) operate with immediate effect as an Interim
application seems to have been served on the first and second
respondent on the 8th February 2004 because on the certificate
urgency there are the names Mokoto Khakale and M. Khakale signed.
return date Mr Molapo appeared before Mofolo J for applicant and said
the matter was not opposed but was going to ask for
Mokoto Khakale has not appeared. Mofolo J postponed the matter to the
25th February 2002 and the rule was extended
thereto to enable
respondent to oppose the application. This minute is confusing
because applicant's counsel said the matter is
unopposed - yet the
court speaks of the respondents opposing their application.
from this point that the matter becomes complicated. The reason being
that on the 25th February 2002 Mr Mohau appeared as
executor in the
absence of any of the respondents before Peete J. There was no
appearance for however Peete J has the respondents
consent the rule is confirmed". The Registrar's file has the
same minute. From the impression given by the
above minutes of the
11th and the 25th February 2005, it appears Mr Molapo for applicant
had been in contact with Mokoto Khakale.
later that Mokoto Khakale who was under arrest told the court he had
never been heard. Consequently he is surprised that
there should have
been a judgment against him. The matter is not simplified by what Mr
Mohau said on the 26th May 2005 to the effect
that Legal Aid Counsel
was involved and there was a notice of appearance. This does not
appear in the Court file. There was no
default judgment as Mr Mohau
claims, but rather a confirmation of the rule nisi by consent.
11th November 2002 applicant filed the following application.
TAKE NOTICE THAT an application will be made to Court on behalf of
KARABO KARABO MOHAU (hereinafter called Applicant) on
the 25th day of
November 2002 at 9.30 am or so soon thereafter as Counsel may be
heard for an order in the following terms:-
the Respondents an opportunity to purge their contempt; and failing
the Respondents to vacate the premises situated on Plot Number
13284-079, LOWER THAMAE, Maseru Urban Area, within such
time as this
Honourable Court may determine;
the Respondents herein to pay costs hereof at an attorney and client
Applicant further and or alternative relief.
no indication of what happened on the 25th November 2002. But on the
2nd December 2002 Mr Molapo appeared before Guni J
and postponed the
matter to the 9th December 2002.
9th December 2002 Nomngcongo AJ has written the following minute.
"Mr Molapo for applicant. Respondents are in contempt of court.
We ask the respondents to be brought before court on the 11/12/02."
Court: Respondent to be brought before court on 11/12/02 to show
cause why they cannot be committed to prison for contempt of
11th December 2002 Mr Mohau appeared for applicant before Nomngcongo
AJ and said "I have not been able to have the warrant
this matter." Consequently the matter was postponed to 2 pm on
17/12/2002. On 18/12/02 at 2.30 pm there is the following
Mofolo J. "On 18/12/2002 at 2.30 pm for applicant Mr Mohau.
Court: The Rule is revived and extended to 23/12/02."
23/12/02 Mr Molapo applicant and the rule was extended by Hlajoane J
to 2/1/03 and nothing happened that day. Consequently
the rule had to
be revived and extended to the 10 th February 2002 and the warrant of
arrest reissued. On the 10/2/2003 Mr Molapo
appeared before Peete J
and postponed the matter to 11/2/2003. On 12/2/2003 Peete J revived
the rule and extended to 24/2/2003
at the request Mr Mohau. On the
24/2/2003 Mr Mohau before Monapathi J. postponed matter 10/3/2003 and
extended the rule accordingly.
On 10/3/2003 Miss Manyakalle postponed
the matter to 17/03/03 before Molai J. Before Hlajoane J, the matter
was postponed to 17/3/03
and 20/3/03 at the request of Mr Molapo
because the warrant of arrest was not being served, Hlajoane J
postponed the matter to
24th March 2003 the matter was before the Chief Justice and the
respondent was still not before court. Mr Mohau for applicant
and second respondents be ordered to supply the registrar with names
in late flora's estate by not later than 26-03 -03.
to inform tenants to pay rent to the Deputy Sheriff of this court.
to vacate premises not later than 30-04-03.
postponed to 5-5-2003. On 5-5-2003 Mr Mpobole appeared for Mr Mohau
before asked the First and second respondents were
opportunity to comply. They up to date have not complied.
Consequently Mr Mpobole ask that they be committed for contempt.
Nomngcongo J ordered that first and second respondent be ordered to
show cause on 26/05/03 why they cannot be committed for contempt
court matter accordingly postponed.
26/05/03 the matter was before Hlajoane J and Mr Mohau appeared for
applicant. What is recorded by the court has many words missing
consequently it is difficult to understand.
judges minute reads:
"On 24/03/03 2nd respondent was by court when certain orders
were to him and was supposed to have complied by end of April
been complied. Postponed 30/05/03 for respondents to come and show
cause why they should not be committed to prison. Warrants to
issued for both respondents for that date."
appears to have happened on the 30th May 2005. The next minute by
Peete J. dated 3/6/2003 reads rule extended to 9/6/03
to enable the
issue of warrant of arrest. Whether the file got misplaced - as is
common these days - I am not sure. The copy of
the will is not in the
file. All that we have is the cover of the will. What became a
priority to me was to finalise this matter
quickly. The question that
bothered me was what had been happening to this matter for more than
one year and 11 months.
certainly not true as Mr Mohau alleges in paragraph 6 of his undated
affidavit of February 2005 (which is the founding affidavit
application filed of record on the 4th May 2005) that Mr Mohau did
not pursue his contempt of Court application during 2002.
shown above disclosures that he did so but for no apparent reason
stopped on the 3rd June 2003 when the application
for committal of
applicant to prison had been postponed to the 9th June 2003.
following averments in paragraph 5 of Mr Mohau's affidavit of
February 2005 are not supported by the record and I quote:
"During 2002 I sought an order to contempt against first and
second respondent herein, but that application was eventually
pursued to its logical conclusion in the hope that the respondents
would see the gravity and their deeds ad purge their contempt.
was more so
because the first respondent personally appeared before his Lordship
the Chief Justice who explained to his in Sesotho language
of the Order of Court granted on the 25th February 2005."
is recorded of the meeting of first respondent with the Chief
Justice. Consequently we do not know when it took place. First
respondent however cannot be found. As I have already shown the
record does not show any of the respondents appearing before court
until the 26th May 2005 when I met the second respondent. Mr Mohau's
statement to Peete J that the respondents consented to the
of the application on the 25th February 2002 is contradicted by Mr
Mohau (himself) before me on the 26th May 2005 when
he said judgment
was taken by default on the 25th February 2002. First respondent was
not found, consequently he could not assist
in this matter. Only
second respondent came before me on the 26th May 2005. It is the
first time that the record of proceedings
shows him as having
appeared before court about this matter.
against this background that second respondent could not accept that
there could be a court judgment made without hearing
him. It is also
against this background that second respondent could not accept Mr
Mohau's taking over of the property that he
calls his home.
clear from the aforegoing and from the record that the Court Order of
25th February 2002 was obtained by mistake because
contradicted himself before this court. Before Peete J Mr Mohau said
the respondents had consented while before me he
said the court order
by default. The second respondent takes the view that such a court
order just could not be granted without his being heard.
seems to be no dispute that second respondent was at the meeting on
the 19th January 2002 as more fully appears in the applicants
affidavit 31st January 2005. There seems to be no dispute that second
respondent was aware of the will There the certainty ends.
on record shows the Legal Aid counsel ever participated in the
proceedings although both applicant second respondent say
involved. Second respondent denies he consented to judgment since the
court has not got all the facts, and Mr Mohau is not
sure how he
obtained the order - The only fair conclusion is that the Order was
obtained by mistake because Mr Mohau no more says
he obtained the
judgment by consent. In terms of Rule 25 of the High Court Rules
1978, such an order could not stand.
becomes difficult to say there is no fraud, where applicant who has
told the court that second respondent consented to judgment
fact he did not. If there is" no fraud then there is a mistake.
That is enough to get the judgment to be set aside
because the court
gave judgment on a mistaken premise. See Herstein and Van Winsen The
Practice of the Supreme Court of South African
4lh Edition at page
541 where reference is made to fraud. In Scott v Trustee, Insolvent
Estate Comerma 1938 WLD 129 at page 136
Murray J dealing with a
default judgment said the courts attitude "must to a great
extent depend upon the discretion of the
court's discretion exercised
in the circumstance of each case". The court in Scott v Trustee
Estate Comerma pages 136 to 137:
"Sufficient cause may mean something less that the "good
cause" required in Rule 95. If the defendant's conduct
fide, and the Court is convinced that he has no belief in the justice
of his case but is merely alleging a defence to delay
of the plaintiffs just claim, he is naturally not entitled to any
relief for his default. But where he has clearly
never acquiesced in
the plaintiffs claim, but actually persisted in disputing it, it
seems to me that the Court should be slow
to refuse him entirely the
opportunity of having his defence heard. In the present case the
applicant's conduct since service of
summons (with which I am now
concerned) has been misguided and dilatory in the extreme, so much so
that I confess to having had
considerable difficulty in deciding to
exercise my discretion in his favour.
In coming to the conclusion that I should exercise my discretion in
applicant's favour, I have been considerably influenced by
that - to my mind - the applicant has shown not merely a bona fide
defence, but a strong prima facie case ... But it seems
inequitable to penalize the applicant, even if blameworthy,..."
Lesotho National Development Corporation v Leatherama Woorce (Pty)
Ltd CIV/APN/46/05 (unreported) this court said in terms of
judgment erroneously sought and erroneously granted in the absence of
the other party have to be rescinded. This is such
a case because
applicant erroneously and the court erroneously believed second
respondent had consented to judgment. In Stander
& Another v ABSA
Bank 1997 (4) SA 873 at 882 EG Negpen J put the matter as follows:-
"It seems to me that the very reference to the 'absence of any
party affected' is an indication that what was intended was
party, who was not present when the order or judgment was granted,
and who therefore not in a position to place before
the court facts
which would have persuaded it not to grant such an order or judgment,
is afforded the opportunity to approach the
court in order to have
such order or judgment rescinded or varied in the basis of facts, of
which the court would initially have
been unaware, which would
justify this being done. Furthermore the rule is not restricted to
case of an order granted but also
to an order or judgment erroneously
sought. It would be difficult to be able to conclude that an order or
judgment was erroneously
sought if no additional facts, indicating
this is so, were not placed before court."
already said second respondent is an ordinary Mosotho man who wants
to be heard. Our rules were not made to deny unsophisticated
litigants a hearing. Otherwise our courts would not be courts of
aside the Order of 25th February 2002 inter alia in terms of Rule 59
because the rules of court are not meant to be used to
Rules of Natural Justice. The cardinal one being that no order of
court should be made without hearing the other side
- the audi
alteram partem rule. Counsel should not by mistake mislead the court
by saying judgments are granted by consent when
this is not correct.
has been made to protect the courts judicial process from the abuse
of rule or situations I which rules have caused unforeseen
justice. I equate it to the public interest litigation in India. In
the Judges Transfer Case AIR 1982 SC 149 said of
such used of its
special powers. This is absolutely necessary for maintaining the rule
of law - and accelerating the balance between
law and justice. As
Innes CJ said in Robinson v Randfontein Estate GM C Ltd 1925 AD 173
at 198 dealing with rules and pleadings.
"The object of pleadings is to define issues ... But within
those limits the court has a wide discretion. For pleadings are
for the Court not the Court for pleadings."
statement applies to the rules of the Court. They are made to aid the
Courts to hear both sides - so that disputes and grievances
fully and properly ventilated. Second respondent was an ordinary
literate and semi educated man. It is common cause That
through Mr Lesuthu let him down. He has to be heard. It does not help
when applicant mistakenly told Peete J that he
consented to judgment
when he had not.
It is not
at this stage possible to decide whether he could be regarded as the
deceased customary law heir according to custom.
rescinding judgment I made the following order: -
"Rescission of judgment granted. The matters is postponed to
23/6/2005 for hearing of whether the estate ought to be administered
in terms of the Administration of Estates Proclamation 1935 and
secondly who is the heir according to custom. The validity of the
will is also in issue."
Applicant : Mr Mohau
Respondents : Mr Thoahlane
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