HIGH COURT OF LESOTHO
SAMUEL NKETSI MOHLOMI 1st APPLICANT
PARISH 2nd APPLICANT
PHOMOLONG 3rd APPLICANT
EVANGELICAL CHURCH 1st RESPONDENT
COMMITTEE 2nd RESPONDENT
MATOOANE 3rd RESPONDENT
LECHESA 4th RESPONDENT
MONARE 5th RESPONDENT
MOREMOHOLO 6th RESPONDENT
MOLEFI 7th RESPONDENT
RAMANGOAELA 8th RESPONDENT
LESOTHO LIMITED 9th RESPONDENT
PRESBITERY 10th RESPONDENT
by the Honourable Justice T. Nomngcongo On the 14th August 2006
4th July 2006 the applicants moved ex parte an application in which
they sought orders in the following terms.
application instituted by applicant in CIV/APN/195/2006 shall not be
orders of this Honourable Court dismissing the application and
directing the applicants to pay costs on attorney and client
shall not be rescinded.
implementation of the order of this Honourable court granted on the
23rd day of June 2006 shall not be stayed pending Unitization
parties shall not be ordered to address the court on the main
respondent (sic) shall not be ordered to pay costs hereof only in
the event of opposition to this application.
shall not be granted such further and/or alternative relief as this
Honourable Court may deem meet.
1 and 2 (c) operate with immediate effect as interim Court Orders"
application was granted and a rule nisi issued returnable on the 17th
July 2006. On the 10th July the respondents entered their
intention to oppose and on the return day the rule was extended to
the 7lh August when the matter came before me for
Kulundu appeared for the applicants and Mr Phoofolo for respondents.
mean-time Mr Phoofolo had filed an answering affidavit and a
supporting one by himself. No reply was filed on behalf of
satisfied therefore of the inherent credibility of the respondents
averments in their answer, I will be entitled to assume
correctness of their version (See Plascon Evans Paints LTD v. Van
Riebeck Paints (Pty) LTD 1984 (3) SA 623(A) ).
to the heading of the notice of motion the application is brought in
terms of Rule 45. It is not stated in the heading
which sub-rule of
Rule 45 is relied upon by the applicant. A reading of the founding
affidavit however leads one to assume that
the rule relied upon is
Rule 45 (1) (a) which provides that the court may, mero motu or upon
the application of any party affected
by an order or judgment
erroneously sought or erroneously granted in the absence of the
party, rescind or vary such order or judgment.
This assumption is
gained from par. 12 of the founding affidavit where after berating
the court for allegedly not giving him an
opportunity to speak in
court where the deponent says he and the other applicants were, the
"I consequently aver that this Honourable Court granted the
order in error as we were not afforded an opportunity to prosecute
our case in the absence
of our Counsel moreso when ultimately, without notice to us, the
Court even ordered us to pay costs on attorney and client scale"
averment by the deponent bears such a similarity to prayer 2 (b) of
the notice of motion that it begs juxtaposing here to illustrate
point I wish to make regarding applicant's pleadings. The prayer is
order of this Honourable Court dismissing the application and
directing the applicants to pay costs on attorney and client
shall not be rescinded."
I wish to make here is that pleadings must be presented with
sufficient particularity to enable not only the opposite
the court as well to know what issue have to be decided and what case
the opponent has to answer. This is a requirement
of Rule 20 (4). The
other party and the court do not have to ferret the applicants papers
to find out exactly what relief is sought.
application as I have indicated the applicant did not tell us under
what sub rule he sought relief. We had to read through
affidavit to find that. Further the order, that is being sought as
quoted above read with par. 12 of the founding
affidavit (supra) do
not tell us exactly what is sought
rescinded. It seems to me that the applicant has combined in the
prayer and affidavit in one paragraph and in one sentence
distinct issues: (a) the rescission of a judgment allegedly granted
in error allegedly because applicants were not granted
to present their case in the absence of their counsel, (b) rescission
of the costs order granted without either
being sought or the
applicants given notice. This commingling of issues is bad pleading
and contrary to Rule 20 (3) and (4) of
the Rule of Court. See also
EPSTEIN V CHRISTODOULOU 198 (1) SA 347).
respondents have raised the following points of law in limine
of locus standi.
obvious that the question of the applicants locus standi is
fundamental to the application because if the applicants lack
other points and indeed the whole application fall away (UNITED WATCH
& DIAMOND CO. V DISA HOTELS 1972 (4) SA 409 at
founding affidavit Samuel Nketsi Mohlomi simply describes himself as
the applicant in this matter and in the main application.
that he has been authorized by the second and third applicants to
depose to the affidavit on their behalf. That is all we
45 entitles "any party affected" by a judgment or order of
court to bring an application for rescission or variation.
It is just
not any one who may bring such an application, but the affected
party. An affected party is one who shows that
".......he has an interest in the subject matter of the judgment
or order sufficiently direct and substantial to have entitled
intervene in the original application upon which the judgment [or
order] was given." (See UNITED WATCH AND DIAMOND
(Supra) at 415 (A-B)
present application not only do applicants fail to disclose who or
what they are or what their interest in the present or
application is but they also failed to do so when challenged to do
so. Nothing is said in this application even what the
of action was in the first place. The first applicant says he
represents two entities whose legal status is not
stated at all.
applicants have failed the first step of any civil proceedings. It is
not necessary therefore to bother with any other argument.
application is dismissed. This is one of those cases where lawyers
have woefully failed their clients who are lay people and
them for advise. I shall not order costs de bonis perpriers but I
have come close enough.
application is dismissed with costs.
Applicants : Mr Kulundu
Respondents : Mr Phoofolo
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