C Of A
(CIV) No. 34/2005
COURT OF APPEAL OF LESOTHO
'MALEBONA KHABO Respondent
appellant sought the rescission of a judgment granted in the High
Court on the 8th September 2004. In its judgment the court
granted the respondent - his wife - a decree of divorce on the
grounds of his adultery, custody of their four minor children,
order for costs. The application was brought in
with Rule 45(1)(a) of the High Court Rules (the Rules) on the ground
that it was erroneously granted in the absence of
a party affected
thereby. The court a quo refused to rescind these orders. The court
did however rescind two other orders that
had been granted ancillary
to the divorce order, affecting the maintenance of the children and
the forfeiture of "the benefits
arising out of the marriage".
It is against the order to refuse to rescind the three orders
referred to above that he has
appealed to this Court.
appellant was himself the plaintiff in the matrimonial proceedings.
In his action he sought an order for the restitution
rights failing which a decree of divorce, custody of three of the
four minor children, forfeiture of the benefits arising
marriage and costs.
this the respondent pleaded and she herself counterclaimed for a
decree of divorce on the grounds of adultery; alternatively
restitution order on the grounds of appellant's desertion. She also
claimed custody of and maintenance for the children as
well as for
the two orders rescinded by the High Court referred to above. The
events to which I refer below occurred after the
pleadings had been
closed and the matter was ripe for hearing.
appellant had the distressing habit of appointing and terminating the
services of his legal advisers. Thus the firm of attorneys
him in this appeal had been mandated to institute matrimonial
proceedings on his behalf as long ago as 2001. However,
was terminated in March 2004 and they were succeeded by Messrs.
Nthethe and Co. on the 6th of April 2004. A few months
mandate was also
by the appellant. In October 2004 Mr. Phoofolo was appointed to
initiate a rescission application. This firm, however,
January 2005 to be succeeded by Messrs. Sooknanan and Associates.
They in turn withdrew in May 2005 when his present
his attorneys withdrew in March 2004 they notified the respondent
that the appellant's address was P.O. Box 2248, Bloemfontein,
and it was to this address that the notice of set down was sent by
respondent attorneys by registered post. His attorneys
their notice of withdrawal to the same address on the 17th of March
indicated above the appellant had appointed Messrs. Nthethe & Co.
to act for him. A notification to this effect was filed
registrar on the 6th of April 2004 and the notice was duly
the respondent's attorneys on the same date. It is clear from
averments made by the appellant that negotiations to settle
dispute took place. Appellant avers that his attorneys appeared in
court without his knowledge and "negotiated a settlement
without first consulting with me regarding the same". He
therefore terminated the attorneys' mandate. Although the appellant
alleges that his attorneys filed a notice of withdrawal on or about
the 24th of August 2004, no such notice was in fact filed.
appear that the respondent must have known of the withdrawal of the
attorneys because they did not seek to serve process
on them, but
reverted to the address his former attorneys had recorded as an
address for service on him when they withdrew on the
17th of March
stated above on the 8th of September 2004 and after hearing the
evidence of the respondent the court granted her a
divorce on the grounds of the adultery of the appellant as well as
the relief set out above. The action proceeded as an
divorce and the appellant was not present or represented.
was the manner of service of the notice of set down which the
appellant alleges was irregular and which he contends vitiated
judgment and orders granted by the court. These were therefore
"erroneously granted in terms of Rule 45(1)(a)".
should be noted that the appellant alleges that he never received the
registered letter containing the notice of set down.
He does so in
terms and in a manner which I can only describe as unconvincing and
without any supportive or corroborative evidence.
following facts are of importance in
whether the rescission application was correctly refused - to the
extent that it was - by the High Court.
(i) The parties had been engaged in litigation since 2001 and the
pleadings had been closed.
(ii) The attorney acting for the appellant at the time he withdrew
nominated an address - obviously for purposes of service - at
service could only be effected by indirect means - such as a
registered letter. As pointed out above, he himself sent his
notification of withdrawal by registered post to the same address. It
would seem that the appellant received it because he acted
on it and
appointed new attorneys who acted for him for a few months.
(iii) The probabilities are therefore that the letter was duly
delivered at the nominated address and received by him.
(iv) The appellant was not represented by attorneys at the time when
service by registered post was effected. He had once again
their services. No address for service of any further process had
been nominated by him as required by Rule 15(1) and
(2), (3) and (4).
(v) Both parties were seeking a termination of the marriage which on
both versions had irretrievably broken down. The appellant
himself sought a restitution order because of respondent's desertion
relying on events that occurred in 2000.
(vi) The appellant was aware that there had been a settlement of the
matter in August 2004. He alleges he did not approve of this
settlement and that he had accordingly terminated the mandate of his
then attorneys. He must therefore have appreciated that he
act to protect his rights but did nothing to do so until after the
Court Orders were served on him.
Appellant's counsel contended that service by registered post was not
authorized by the Rules and that such service was a nullity.
Court could therefore - so he submitted - not have condoned the
non-compliance with the Rules. I don't agree. The authority
counsel referred us i.e. Superior Court Practice - Erasmus - at B174
- 175 does not support this contention neither do
the Rules. Rule 4
to which he referred us, is directed at regularizing the service of
process "directed at the sheriff'. The
provisions of Rule 5
(dealing with the service of documents outside Lesotho) regulates the
service of process or documents "whereby
instituted". It must be borne in mind that we are dealing with a
step in the proceedings which had reached
a stage where not only a
summons and a declaration had been issued but also a plea and
counterclaim filed. As pointed out above
the pleadings had
subsequently been closed, a settlement had been negotiated, although
had repudiated it. The process served by registered post was not a
process directed to the sheriff, but a notification of
the date of
the hearing. The address which appellant's attorneys had nominated
was the one the respondent adverted to and could
only be effected by
indirect means such as a registered letter. The court should
therefore have regard to all the circumstances
and then determine
whether it was reasonable for the respondent's attorneys to notify
the appellant of the date of the hearing
through the means they
employed. In the particular and somewhat extraordinary circumstances
set out above, it is our view that
it was not unreasonable for the
respondent's attorneys to serve the appellant with the notice of set
down in the manner they did.
is however clear that the appellant's application for rescission
should in any event not have been tolerated because
indeed no irregularity perpetrated by the respondent in serving the
notice of set down as she did. Neither counsel referred
us to the
provisions of Rule 15 of the Rules which prescribes the procedure to
be followed when an attorney's mandate is terminated
or he ceases to
act for the party concerned. This Rule reads as follows:
"15. (1) Any party bringing or defending any proceedings in
person may at any time appoint an attorney to act on his behalf,
shall file a power of attorney and give notice of his name and
address to all other parties to the proceedings.
any party represented by an attorney in any proceedings may at any
time, subject to the provisions of Rule 16, terminate
attorney's authority to act on his behalf, and thereafter he may act
in person, or may appoint another attorney to act for
him in the
party acting in terms of sub paragraph (a) of this sub-rule shall
forthwith give notice to the Registrar and to all other
the termination of his former
attorney's authority, and if he has appointed another attorney to act
for him, of such attorney's name and address. The attorney
appointed to act shall forthwith file with the Registrar a power of
attorney authorizing him so to act. If no further attorney
appointed to act for the party, such party shall in the notice of the
termination of his former attorney's authority as aforesaid,
notify the Registrar and all other parties of an address within 5
kilometres of the office of the Registrar for the service
on him of
all documents in such proceedings.
receipt of a notice in terms of sub-rule (1) or (2) the address of
the attorney or of the party, as the case may be, shall
address of such party for the service upon him of all documents in
such proceedings, but any service duly effected
receipt of such notice shall, notwithstanding such change, for all
purposes be valid.
an attorney acting for any party ceases so to act he shall forthwith
notify the Registrar and all parties accordingly. The
to the Registrar shall specify the date when, the parties to whom
and the manner in which the notification was sent
to all parties,
shall be accompanied by a copy of the notification so sent.
notification shall be of the same force and effect as a notice under
sub-rule (2). Provided that unless the party for whom
was acting himself within 3 days notifies all other parties to the
proceedings of a new address for service, it shall
not, save in so
far as the court otherwise orders, be necessary to serve the
documents on him". (Emphasis added).
recorded above, no notice recording the withdrawal of appellant's
attorneys Messrs. G.G. Nthethe & Co. was filed with
despite appellant's averment that it was. It is common cause that
appellant's attorneys withdrew on the 24th of August
appellant was therefore himself obligated to notify the respondent
within 3 days of a new address for service and in
the event of his
failure to do so, there was no obligation on the respondent to serve
documents on him. See sub-rule 15(4) and
more particularly the words:
"Provided that unless.......be
to serve documents on him." The appellant was the architect of
his own downfall by acting as irresponsibly as he
did when conducting
these reasons I am of the view that the court a quo was correct in
refusing to grant a rescission of the orders of divorce,
costs on the grounds of the manner in which service was effected.
There was no cross-appeal by the respondent and we
not called upon to adjudicate on the correctness of the decision of
the court in respect of the orders rescinding
the awards of
maintenance and forfeiture. These matters, it would appear, still
need to be resolved, hopefully not by further fruitless
litigation but by wise negotiation and compromise.
Appellant's counsel, quite correctly abandoned any submissions
challenging the decision to grant a divorce on the grounds that
adultery was not proved. We were seized only with an application for
a rescission of the Court orders on the grounds stated
these reasons the appeal is dismissed with costs.
Officio JUDGE OF APPEAL
Appellant : Mr. N. Mphalane
Respondent: Mr. S. Phafane
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