CIV/APN/3/2002

IN THE HIGH COURT OF LESOTHO

In the Matter Between:

'MABONANG SEOELA Applicant

And

TUMELO SEOELA 1st Respondent

COMMISSIONER OF POLICE 2nd Respondent

OFFICER COMMANDING, MASERU

POLICE STATION 3rd Respondent

Ruling

This is an Application for rescission of a judgment that was granted by default. The subject matter in this Application is a vehicle which Applicant claims belonged to her late husband Moroma Seoela. The first Respondent is the Applicant's late husband's blood brother.

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In his answering papers the first Respondent has raised some points in limine,

1. Non compliance with the Rules of Court

2. Non-disclosure of material facts and abuse of court process

3. Failure to pay security for costs Rule 27 (6) (b).

Rule 8 (8) of the High Court Rules requires that a Respondent must be allowed five days after service of process to file his intention to oppose. In the present case, the first Respondent was served with the Application for Rescission on the 11th April, 2003 and matter set down for hearing on the 15th April, 2003.

Obviously, the first respondent was not afforded enough time within which to file his notice of intention to oppose. He was thus prejudiced in that he had to work under pressure. In Makenete v Lekhanya 1991-92 LLR&LB 126 the Court of Appeal demonstrated its displeasure at practitioners who disregard compliance with the Rules of Court by refusing to enrol an appeal where record was filed out of time.

On non-disclosure of material facts, first Respondent is saying that Applicant failed to tell this court that in fact, she instituted proceedings relating to the same vehicle in CIV/APN/459/2001. The rule in that

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Application lapsed as far back as 2001. Applicant is putting all the blame on the lax attitude of her lawyer.

Applicant on the other hand is saying that first Respondent could have also taken the initiative in CIV/APN/459/01 by reviving the rule to have it discharged. I have never heard of this practice except in Appeals where the Respondent could set the matter down if Appellant is reluctant. The same counsel who appeared for the Applicant where the rule lapsed, is the same counsel who abandoned that Application but instituted a fresh application, the present application. A final order was obtained in favour of the Applicant authorizing the keeping of the vehicle in Police custody pending an action which applicant promised to institute.

It was only when the applicant failed to institute action as contemplated that the first Respondent asked for the release of the vehicle to him. Notice of intention to oppose was filed by the same counsel who allowed the rule in CIV/APN/459/01 to lapse and who also failed to institute action after he had obtained a final order for Police to take away the vehicle from the first Respondent for safe keeping.

As the saying goes, ignorance of law is not an excuse, but counsel always acts under client's instructions. Counsel being a professional has

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to advise his client accordingly. If there had been a change of counsel, that would be something, but where it has always been one counsel representing same client could not be said client never gave proper instructions.

The last point has been that Applicant never filed any security in terms of Rule 27 (6) (b). But when the matter was argued before me on the 26th September, security had only been paid the previous week.

Nkhetse v Santam Bank Limited & Others 1982 -84LLR 236

LLR 236 the court in'criticising non compliance with Rule 27 (6) (b) had this to say, "there is no indication in the affidavits that Applicant has furnished security for costs." This implies that the filing of security has to be at the stage when Applicant files his application for security. The Applicant has not even applied for condonation of late filing of that security for costs. Applicant only filed such security only when she realized that the first Respondent has taken that as a point in limine. I do not even see why the Registrar enrolled the matter in the absence of payment of such security as it is the office of the Registrar which fixes such security.

On the three points in limine that were raised by the first Respondent the court finds that there has been non compliance with rule

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Rule 8 (8) in that only four days have been allowed for filing of intention to oppose. The Applicant did not disclose that she had earlier on filed an Application which she abandoned by allowing the rule therein to lapse. The blame being attributed to her lawyer. The late filing of security for costs without applying for any condonation.

Looking at this case as a whole the court feels that in the exercise of its judicial discretion, it is going to invoke the provisions of Rule 59 of the High Court Rules by condoning the non-compliance with the Rules of Court by the Applicant and allow parties to argue the question of rescission of judgment. I am doing this because when one looks deeply into the matter it involves the estate of the deceased which might affect not only the parties but minor children.

1. M. HLAJOANE

JUDGE

18th October, 2005.

For Applicant: Mr Fosa

For Respondent: Ms Ramafole