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.

2

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

3

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

4

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