HIGH COURT OF LESOTHO
RANKHETHOA APPLICANT/ DEFENDANT
BANK (In liquidation) 1st RESPONDENT/ PLAINTIFF
DEPUTY SHERIFF 2nd RESPONDENT
by the Honourable Madam Justice N. Majara on the 14 December 2005
an application for an order to rescind and set aside judgment which
was granted by my brother Monapathi J on the 30th August
learned Judge gave the order on the basis of a judgment allegedly
consented to by applicant herein which the latter challenges
basis that he neither signed nor consented to it.
raised certain points in limine to wit, that Applicant is barred from
invoking the provisions of Rules 2 7 and 45 of
the High Court for the
reason that as the former averred, he consented to judgment and as
such his only remedy would be by way
of appeal and not rescission.
second point was that Applicant has failed to establish the essential
elements necessary for the granting of rescission namely,
a bona fide
defence; he is not in wilful default and he is not approaching the
Court for the purpose of delaying execution thereof.
that Applicant should have anticipated a dispute of fact herein.
that he has failed to disclose urgency in the Certificate of Urgency
and lastly that he has failed to disclose prejudice.
in turn, also raised a point in limine to the effect that Respondent
herein has no locus standi to depose to the opposing
the reason that he is engaged in a profit making partnership with
Harley and Morris which the former contended was
a direct breach of
the Accountants Act No. 9 of 1977, Section 18 (e) thereof.
end he quoted the provisions of the section which read:-"'No
directly or indirectly allow or agree to allow any Attorney or
Advocate to participate in the profits of the member's professional
work or participate in the profits of the professional work of an
Attorney or Advocate. "
Applicants' submission that since the above provision is couched in
peremptory terms deponent cannot have any locus standi
in judicio to
depose in this matter. Ms Lekalakala submitted further that because
of this reason, there is no properly filed opposing
affidavit and as
such the matter is as good as unopposed.
proceed to deal with the points in limine starting with the one
raised by Applicant first i.e. that of lack of locus standi
part of Respondent.
response to the submissions made on the above point in limine, Ms
Qhobela submitted that applicant cannot institute proceedings
a person and then turn around and challenge the locus standi of the
It was her further submission that this averment was never raised in
the founding affidavit thus denying them the opportunity
with the above submission and would also take it further to say that
challenging the locus standi of a person against whom
instituted proceedings whether in the founding or replying affidavit
sounds like a misconception to me.
might have had a valid point if for instance it was Respondent who
had instituted these proceedings and not vice versa.
A person cannot
bring another to Court and in the same breath turn around and
challenge their locus standi in the same matter.
Allowing this kind
of argument would ' be making true the saying 'one having one's cake
and eating it.'
addition, even assuming Applicant is correct that the deponent to the
answering affidavit is acting in direct breach of the above
provision, it is my humble opinion that this present application is
not the proper forum to challenge the alleged contravention
very reason that the latter filed the opposing affidavit because he
was brought to Court by Applicant I therefore dismiss
points in limine raised by Respondent, I will first deal with the one
relating to invocation of Sections 27 and 45 of the
Rules of Court.
Rule 27 provides as follows:-
"...a defendant may at any time confess in whole or in part the
claim contained in the summons. Such confession shall either
witnessed by an attorney acting for him, not being the attorney for
plaintiff, or be verified by affidavit. The written confession
signed and witnessed or verified shall be furnished to the plaintiff.
"Where judgment has been granted against defendant in terms of
this rule or where absolution from the instance has been
a defendant, the defendant or plaintiff as the case may be, may
within twenty-one days after he has knowledge of such
to court, on notice to the other party, to set aside such judgment"
Ms Lekalakala, Counsel for Applicant herein argued that applicant is
not invoking the provisions of Rule 27, the application
rescission and setting aside of judgment which is provided for under
the same Rule. In my opinion, Applicant is within his
right to seek
Rule clearly stipulates that a judgment granted under it may be set
aside on notice to the other party. The submission by
Ms Qhobela is
therefore incorrect and this point falls away.
questions of failure by Applicant to disclose urgency in the
Certificate of urgency and to show the prejudice he would suffer
the application been dealt with without the dispensation of the
Rules, it was Ms Lekalakala's contention that the certificate
(22) © provides as follows:-
" Every urgent application must be accompanied by a certificate
of an advocate or attorney which sets out that he has considered
matter and that he bona fide believes it to be a mater for urgent
(22) (b) in turn provides as follows:-
"In any petition or affidavit filed in support of an urgent
application, the applicant shall set forth in detail the
which he avers render the application urgent and also
the reasons why he claims that he could not be afforded substantial
in an hearing in due course if the periods presented by this
rule were followed. " (my underlining)
paragraphs 4 — 13 of his founding affidavit, Applicant gives a
brief history that brought about this application from the
summons were issued until the disputed consent to judgment was made
an order of Court. At paragraph 14 and 15 thereof he avers
"/ respectfully aver that the judgment as presently ordered is
causing me serious prejudice and harm as I have defended the
I have not been given a fair hearing even where my Attorneys prayed
that I be given an opportunity to explain what would
prejudicial to me. There is no way Monapathi J. could conceivably and
by a so-called judgment to consent, could have
certainly said it was
my signature, without my saying so or been given proof that was so.
He and my Attorneys were in the dark
but still he delivered a
judgment against me.
Unless the judgment is stayed and rescinded, I stand to suffer
irreparable prejudice and harm. I have no other remedy but to proceed
in this manner. "
opinion, Applicant might have shown in the above quote that he will
suffer prejudice if this judgment is not rescinded, but
would so suffer if he had approached this Court on notice to the
other party and had observed the modes and periods as set
out by the
Certificate of Urgency is couched in the following terms and insofar
as is relevant to the point raised:-
"I have considered the matter and bona fide belief it to be one
deserving urgent relief."
In paragraph 2 it reads as follows:-
"I have considered the above matter and bona fide believe it to
deserving urgent relief
2.1 Judgment was handed on a so-called consent to judgment where ex
facie the pleadings I had entered on appearance to defend and
(sic) Applicant's Counsel;
2.2 I requested a copy of this alleged consent to judgment but First
Respondent refused until on the day of judgment when they
following the order of the Judge. The Judge refused Applicant's
Counsel a postponement in order to take instructions and
then gave judgment to present First Respondent.
2.3 Applicant has not been given a fair hearing where clearly the
issue of the alleged consent to judgment could be an issue in
and where professionally present First Applicant could not deal with
applicant outside his legal representative.
2.4 The judgment is actually prejudicial, harm (sic) and pre-emptive
having regard to the pleadings on 30th August 2004. "
above quotation stands, although the deponent thereof did state that
she believes the matter to be deserving of urgent relief,
however failed to state the grounds for the alleged urgency.
Naturally every application and or action will be based on
grounds the most common being prejudice a litigant might suffer. It
is however imperative that it be exhibited to the Court
the modes and periods prescribed by the rules per se will in itself
cause and/or exacerbate the prejudice.
required in applications of this nature is that over and above
stating that the matter is urgent, Counsel must also state
grounds for urgency as was laid down by the Court of appeal in the
case of The Commander LDF & Anor v Tseliso Matela 1999-2000
opinion, the grounds and the reasons as stated in both the
Certificate of Urgency and the founding affidavit respectively
far short of meeting the requirements of Rule 8 (22) (b) and (c) as
well as the position which was laid down in The Commander
(Supra) and which I respectfully agree with wherein the Court of
Appeal had this to say:-
" As a general rule, basic considerations of fairness and the
need to prevent the administration of justice being brought
disrepute require appropriate notice to be given. Orders should only
be granted without notice where this is rigorously justified
for instance, there is extreme urgency or the need to prevent the
order from being frustrated where any prior notice could
that effect).... (my underlining)
It is also not enough that counsel merely certifies urgency.
Certificates of urgency must shortly state the grounds for
to say, it appears that most legal practitioners approach the Courts
on an urgent basis and more often than not, without
notice to the
other party as a matter of routine and or standard practice
regardless of the prevalent
in the various matters. This practice ought to be discouraged at all
costs if we sincerely want to maintain the integrity
of the justice
system and the trite audi alteram partem principles.
cannot help but agree with the sentiment that this practice has
become a way of jumping the queue and having such matters being
first preference on the pretext that they so deserve due to some
imagined urgency when the contrary is the case.
As I have
already stated above applicant in casu, has failed to satisfy the
above mentioned requirements and on the basis of these
points alone I
accordingly dismiss the application with costs.
Applicant : Ms Lekalakala
Respondent : Ms Qhobela
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