C of
A(CIV)NO.14/06

CIV/APN/259/04

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between

COMMISSIONER
OF POLICE 1st APPELLANT

ATTORNEY
GENERAL 2Nd APPELLANT

and

MAOPELA
MAKHETHA 1st RESPONDENT

MOEKETSI
JANE 2Nd RESPONDENT

CORAM:

STEYN, P

SMALBERGER,
JA

MAJARA,
JA

HEARD :
28 MARCH, 2007

DELIVERED
: 4 APRIL, 2007

JUDGMENT

SUMMARY

Appeal from an order of the High Court denying the parties the right
to proceed with an opposed application because of a previous
court
order which it was claimed precluded them from doing so. Previous
court order no longer operative because of abandonment
by respondents
of an earlier default judgment in their favour. Appeal allowed.
Appellants ordered to pay the costs of appeal because
situation which
had arisen essentially due to incompetent case management on the part
of appellants.

2

SMALBERGER,
JA

1. This
   appeal reveals a disturbing state of affairs regarding the events
   preceding it. On 14 June 2004 the respondents (as applicants)

   brought an applicant against the appellants (as respondents) in the
   High Court. For the sake of convenience, and a. better understanding

   of what follows, the parties will be referred to as they were in the
   court a quo.

   
   

2. In
   the application the applicants sought an order (1) declaring the
   dismissal of the applicants by the first respondent (the
   Commissioner of Police) as unlawful; (2) directing the first
   respondent to reinstate the applicants in the Lesotho Mounted Police

   Service with immediate effect; and (3) directing the first
   respondent to pay the applicants' salary arrears from the date of

   their dismissal together with interest thereon at 12.5% per annum.
   It appears from the application that the applicants had previously

   been dismissed from the police service; that their original
   dismissal was set aside following an appeal; that they

   
   

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were thereafter interdicted on half pay with effect from 1 September
2000; and later again dismissed.

3. On
   28 June 2004, in the absence of any appearance to defend on behalf
   of the respondents, Hlajoane J gave judgment by default
   in favour of
   the applicants granting them the relief sought. On 6 July 2004 the
   respondents filed an urgent application in which
   they sought, inter
   alia, a stay of execution and rescission of the default judgment.
   The accompanying founding affidavit was
   woefully inadequate to
   sustain the relief sought. The application was (quite correctly)
   dismissed by Majara J (then AJ) on 6
   July 2004. Her order read as
   follows:

   
   

1. "The
   application is dismissed as this court is not satisfied with the
   explanation for delay.

   
   

2. The
   applicants have simply stated that they have a bona fide defence
   without setting out averments which if the matter were to
   be taken
   to trial would entitle them to the relief sought."

   
   

4. On
   22 July 2004 the respondents noted an appeal against the order made
   by Majara J. Undaunted by the noting of the appeal,

   
   

4

and with complete disregard of the fact that consequent upon Majara
J's order the matter between the parties, pending an appeal,
was res
judicata, the respondents on 31 August 2004 launched a second
application for rescission similar to the one that had been

dismissed, seeking identical relief. This time the founding affidavit
had been amplified in an attempt to overcome the shortcomings
of the
earlier one.

4. On 6
   September 2004 Hlajoane J, in apparent ignorance of the previous
   order of Majara J, granted a rule nisi calling upon the
   applicants
   to show cause why the respondents should not be granted the relief
   sought. To this the applicants responded by raising
   various points
   of law in terms of High Court Rule 8(10) (c). In the meantime the
   respondents' appeal which had been noted on
   22 July 2004 was
   withdrawn on 1 September 2004. There appears to have been no legal
   basis to justify the granting of the rule
   nisi.

   
   

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4. What
   occurred thereafter does not appear from the appeal record, but the
   parties are agreed that on the return day of the rule
   nisi on 5
   December 2005 Hlajoane J noted the following in

   
   

the presence of the parties' legal representatives:

"On 5/12/05 Mr. Nteso for applicant and Mr. Motsieloa for the
respondents. Parties are before court today on rescission application

but on looking at the minutes in the file the rescission application
was refused by my sister Majara AJ as she then was. The court
is told
that there was an appeal noted on that ruling which appeal was later
withdrawn.

There was again a rescission application which was granted and the
court feels that that was an error. Parties were given time
in the
morning to go and consider what steps to take to remedy the
situation. Both the court and counsel on both sides feel that
there
has been so much confusion in the handling of this case and that the
case was never properly dealt with particularly on the
merits.

Parties are agreed that respondents to file their opposing papers
within 14 days from today and the reply if any thereafter and

thereafter rules of court to govern the rest."

4. A
   further entry was made by Hlajoane J on 6 March 2006. She noted that
   "the parties are negotiating a settlement", and
   postponed
   the matter to 20 March 2006 on the contested roll. The respondents
   duly filed answering affidavits to the first

   
   

4. 6

   
   

application on 17 March 2006 to which the applicants responded with
replying affidavits on 23 March 2006.

8. The
   matter eventually came before Maqutu J on 14 August 2006, He made an
   order in the following terms:

   
   

"In view of Majara J's order dated 6th July 2004 dismissing the
application for rescission, this matter remains final until
the said
order can be reversed on appeal."

The present appeal is directed against this order.

8. Before
   us counsel were agreed that the proceedings before Hlajoane J on 5
   December 2005, as recorded by her, amounted to an abandonment
   by the
   applicants of the default judgment granted in their favour so that
   the true issue between the parties, the legality of
   the applicants'
   dismissal, could be determined without recourse to further
   unproductive legal proceedings and resultant unnecessary
   delays. It
   is common cause that such abandonment was legally competent. It
   should have been done formally in terms of High Court
   Rule 44(1) by
   delivering a

   
   

7

notice of abandonment of the judgment to the Registrar and all
affected parties. Had this been done it may well have prevented
later
confusion, and Maqutu J may not have made the order which is being
appealed against. Presumably the requisite notice was
not given
because abandonment was agreed upon between the legal representatives
of the parties before the presiding judge.

8. The
   events before Hlajoane J reflect a commendable and mature approach
   by all concerned to overcome the legal obstacles in the
   way of a
   proper ventilation of the true issues between the parties. In so
   doing they acted in the interests of the proper administration
   of
   justice. That the parties had wisely elected to follow such a course
   is further evident from their conduct in filing affidavits

   consequent upon Hlajoane J's order.

   
   

8. By
   the time the matter came before Maqutu J, Majara J's order had been
   overtaken by subsequent events and had fallen away following
   on the
   abandonment of the default judgment. It is not

   
   

8

clear whether these events, particularly the agreement noted by
Hlajoane J, were brought to the attention of Maqutu J or, if he
was
aware of them, he simply chose to ignore them. Whatever the
situation, Maqutu J's order cannot stand having regard to the events

that preceded it. It follows that the appeal must succeed.

12. With
    regard to costs, we are of the view that the costs of the appeal
    should be borne by the respondents (appellants in the appeal).

    Having regard to the unfortunate history of the matter, the appeal
    is the end manifestation of what essentially amounted to incompetent

    case management on behalf of the respondents in their conduct of the
    matter. Mr Motsieloa for the respondents fairly conceded
    that in the
    circumstances it would be appropriate to mulct the respondents with
    the costs of the appeal.

    
    

12. The
    parties were further agreed that it would be proper for them to be
    given an opportunity to supplement their affidavits, if
    so advised,
    in order to ensure that the issues between the parties are properly
    before the High Court so that the matter may
    be

    
    

9

brought to finality as soon as possible. Each party will be afforded
time within which to do so; if the applicants do not avail
themselves
of the opportunity to file further affidavits, that will not preclude
the respondents from doing so. Counsel were prima
facie of the view
that the dispute can be disposed of on application. Should the judge
hearing the matter consider that there is
a need, because of factual
disputes, to refer the matter to evidence, it would be open to such
judge, in the exercise of his or
her discretion, to do so.

14. At
    the end of the appeal we presented counsel with a draft of

    
    

the order that we proposed making, for their consideration. They
raised no objection to the order proposed.

14. The
    correctness of the order made by Majara J on 6 July 2004 was never
    an issue in this appeal, and her minimal participation
    in the
    preceding events did not preclude her from sitting in the appeal.
    The matter was specifically raised with counsel and
    they

    
    

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had no objection to her being a member of the Court hearing the
appeal.

14. In
    the result to following order is made:

    
    

1. The
   appeal is allowed and the order of Maqutu J dated 14 August 2006 is
   set aside.

   
   

2. The
   appellants (respondents in the High Court) are ordered to pay the
   costs of appeal.

   
   

3. The
   matter is referred back to the High Court for the hearing of the
   application of the respondents (applicants in the High Court).

   
   

4. The
   respondents (applicants in the High Court) are given leave to
   supplement their papers, if so advised, within 21 days of4 April

   2007.

   
   

5. The
   appellants (respondents in the High Court) are in turn given leave
   to supplement their papers, if so advised, within 21 days
   thereafter
   whether supplementary papers

   
   

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are filed by respondents (applicants in the High Court) or not.

6. The
   Registrar of the High Court is requested to give the matter the
   highest priority on the roll of opposed civil matters.

   
   

J.W.
SMALBERGER

JUDGE OF
APPEAL

I agree
J.H.STEYN

PRESIDENT
OF THE COURT OF APPEAL

I agree

N. MAJARA

judge of
Appeal

For the
Appellants : Mr R. Motsieloa

For the
Respondents : Mr P.T. Nteso