CIV/APN/240/04 CIV/T/288/04
IN THE HIGH COURT OF LESOTHO
In the matter between;
EXPERTYPE SECRETARIALS SERVICES PLAINTIFF
VERSUS
KPMG/HARLEY & MORRIS JOINT VENTURE DEFENDANT
JUDGMENT
DELIVERED BY THE HON. MRS JUSTICE K.J. GUNI ON THE 7th SEPTEMBER. 2007
Rescission of judgment ...who may apply for rescission of the judgment? .... Any party or only a party to the dispute? .... RULE 45 HIGH COURT RULE 1980.
EXECUTION
Property attached in execution can only be claimed by way of an application to the court by the person who claims and can prove the ownership of the said property.
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NAMES OF PARTIES TO THIS APPLICATION
the applicant is the LIQUIDATOR LESOTHO BANK [In Liquidation] duly cited as such in terms of Section 243 of the Companies Act of 1967. Herein the applicant is represented by ANTHONY SCOTT MCALPINE who claims to be duly authorized. He describes himself in the FOUNDING AFFIDAVIT as an adult male Chartered Accountant and member of the KPMG/HARLEY and MORRIS JOINT VENTURE, the liquidator of LESOTHO BANK (in Liquidation) having its principal offices at First Floor Mafike House, Kingsway Street MASERU.
The 1st respondent is Expertype Secretarial Services (PTY) LTD. a company registered in terms of the companies Act, 1967. Its principal office of business is in MASERU urban Area. This 1st respondent is the plaintiff in the main action - CIV/T/288/04 The 2nd respondent is the Deputy Sheriff of the High Court whose function was to execute the writ issued out to enforce the judgment obtained in that main action CIV/T/288/04.
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HISTORICAL BACKGROUND
Applicant herein approached this court ex-parte: The Rule NISI was sought and obtained without giving the respondents an opportunity to be heard before the issuance of the said Rule Nisi. The said rule nisi was issued in the following forms:-
INTERIM COURT ORDER
it is hereby ordered that:
A rule is hereby issued calling upon the Respondents to show cause on the 19th June 2004 why:
The forms and provisions of the Rules of the High Court shall not be dispensed with regard being had to the urgency of this matter;
2. 2.1 Execution of the judgment granted by default in
CIV/T/288/04 on the 3rd June be stayed pending the finalization of this matter;
Judgment in the aforesaid main action be rescinded and the Applicant be granted leave to defend the main action;
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23, Respondents be order to pay costs in the event of opposition of this application; 2.4. Applicant be granted further and or alternative
relief
3. That prayers 1 and 2.1 operate with immediate effect as an interim interdict
3. APPLICANT'S CASE
From his own papers, in particular from the FOUNDING AFFIDAVIT deposed to by one ANTHONY SCOTT MCALPINE, the applicant is THE LIQUIDATOR LESOTHO BANK [IN LIQUIDATION], duly cited as such in terms of SECTION 243 of the COMPANIES ACT 1967. Applicant has its offices at FIRST FLOOR MAFIKE HOUSE, KINGWAY STREET, MASERU. On the 12 May 2004, the liquidation Department received a letter from the Legal Representative of the 1st respondent. [My underlining] This 1st respondent in that letter was claiming payment of the sum M4,500.00 plus interest at the rate of 18.5% per annum, being the payment for services rendered by the 1st Respondent to the LESOTHO BANK (in LIQUIDATION) during July of 1998.
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On or about the 24th May 2004 Summons against KPMG/ HARLEY and MORRIS JOINT VENTURE were served on the LIQUIDATION DEPARTMENT. [My underlining] According to the applicant these are two separate offices or entities. The deponent of the FOUNDING AFFIDAVIT dares not to explain the relationship between these two offices. He does not mention the body to which this so called LIQUIDATION DEPARTMENT belong if at all it is a different and separate entity from KPMG/HARLEY and MORRIS JOINT VENTURE.
On or about the 4th June 2004 the Deputy Sheriff- Mr Masenyetse, served a writ of Execution on the office of the LIQUIDATION DEPARTMENT. [My underlining]. They then proceeded to attach goods after having been informed that they were attaching against the wrong party.
Nevertheless they insisted and continued with the attachment. The default judgment was applied for and obtained prematurely, there is a deliberate omission to mention against whom such default judgment was obtained. Therefore the presumption can be made that the said default judgment was entered against the party that is complaining. That default judgment was sought and obtained after the dependant was given the notice of the same. It is the applicant's case that such default judgment was obtained pre-maturely. The applicant in this matter
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has failed to file the security for costs as required by the rules on the grounds that the respondents have cause its failure to pay those costs by taking and by removing the court file from the court premises. It is further alleged, on behalf of the applicant that it has a bona fide defence against the claim.
URGENCY
It is alleged that the applicant is entitled to approach this court ex-parte on the grounds of urgency of the matter because the Deputy Sheriff has attached property, which does not belong to the KPMG/HARLEY and MORRIS JOINT VENTURE, but instead he has attached
goods of the LIQUIDATION DEPARTMENT which is not a party to the main matter. [Who is the liquidations department?]. [Who are the parties in the main matter?] Who is this applicant then?
This is the applicant's case in brief there are these questions which are raised by the case of the applicant which must also provide answers to those questions. Those answers are not easily found.
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The first Respondent is the party resisting the confirmation of the interim court order sought and obtained ex-parte by this applicant. The 1st Respondent has raised a number of POINTS IN LIMINE. These questions of law are raised by the apparent discrepancies in the applicant's case. The first point in limine concerns the LOCUS STANDI of the applicant.
LOCUS STANDI
This applicant claims that it was not a party to the main action. The Main Action was against KPMG/HARLEY & MORRIS JOINT VENTURE. The Summons in the Main Action were issued against KPMG/HARLEY & MORRIS JOINT VENTURE. The said Summons were served upon the
LIQUIDATION DEPARTMENT. Why? Who accepted the service? The applicant, as it appears on the papers is the LIQUIDATOR LESOTHO BANK [IN LIQUIDATION].
The letter of demand written by the legal Representative of the 1st respondent is addressed to "Messrs KPMG/HARLEY & MORRIS
JOINT VENTURE, 1st FLOOR, MAFIKE HOUSE ....."
According to the applicant's deponent of THE FOUNDING AFFIDAVIT - ANTHONY MCALPINE, this letter of demand
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was received by the LIQUIDATION DEPARTMENT on the 12th May 2004. Response to the said letter was duly written and sent to the 1st Respondent's legal Representative. This letter is addressed to KPMG/HARLEY & MORRIS JOINT VENTURE. It is received by LIQUIDATION DEPARTMENT without any questions regarding the identity of the recipient and/or addressee. The summons against the same person as the addressee in the letter of demand were received at the LIQUIDATION DEPARTMENT. It does not appear like the Deputy Sheriff when serving those Summons upon the LIQUIDATION DEPARTMENT was directed elsewhere. No issues were raised about service of those summons upon a wrong party or person. It is not in dispute that all the processes from the plaintiff/now respondent's legal representative's office, were served at the same place and to the same person as the defendant It sounds like those summons were ignored presumably on the ground that the defendant has all the time in the world to react if and when it feels like doing so ignoring the fact that there is a time limit governing its response to such process. The main question is that at the time of service of the said summons no question was raised - regarding the identity of the person upon whom the service was effected.
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WHO IS ENTITLED TO APPLY FOR RESCISSION OF JUDGMENT. Can the rescission of default judgment be applied for by anyone? Can the rescission of default judgment be granted to anyone who is asking for it? In terms of rale 45 of High Court rules of 1980 it seems any party affected by an order or judgment of the court may apply to the High Court for its rescission or variation. The relevant portion of this rule reads as follows;-
The court may, in addition to any other powers it may have mero motu or upon the application of any party affected, rescind or vary-
an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;
an order or judgment in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission;
an order or judgment granted as a result of a mistake common to the parties.
In terms of tins Rule 45 (2) any party desiring a relief under this rule shall make application. In this application, this applicant seeks the rescission of a judgment which it claims it was not a
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party to it Why then does this applicant seeks a rescission of the judgment in which he was not a party? What are the interest of this applicant in that judgment whose rescission it seeks if it was not a party? The applicant has not pointed out what its interests are. It wants to be granted leave to defend To defend what? If the applicant is not a party to the main action, it has no business to seek the reopening of that main action for it to be granted leave to defend. Nobody has a right to defend the action in which he or she is not a party. Even though it appears that in terms of the rules any party may apply to court for rescission of judgment, the court is not entitled to just rescind the judgment because it is asked in an application to do so by any party. There must be a useful purpose served by the requested rescission of the judgment. The reasons for which judgment may be rescinded are set out in Rule 45 (I) (a) and (c) above. The judgment that is "granted in the absence of any party affected thereby" must mean the judgment granted in the absence of the party to the dispute subject matter of the said judgment Therefore if this applicant was not a party to the dispute which resulted in the judgment obtained in its absence, it has no business to apply for the rescission of that judgment The application for the rescission of the judgment must be made by the party who has the real interest in the dispute and who has a right to appear before the court to present his or her case. The person who
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is not a party to the dispute has no right to appear to defend where he or she not sued.
It is the common cause that the letter of demand from the 1st respondent's legal representative was addressed to Messrs KPMG/HARLEY & MORRIS JOINT VENTURE. It is also in the common cause that that letter was received by the LIQUIDATION Department LESOTHO BANK [IN LIQUIDATION] 1st Floor MAFIKE HOUSE. The response is written on the paper bearing the letterheads of LESOTHO BANK (IN LIQUIDATION). At the bottom of the sheet of this paper is written "LIQUIDATORS"; KPMG/HARLEY and MORRIS JOINT VENTURE, Represented by AS McAlpine & SC HARLEY. What is the really purpose of the use of these many shades? Is it to cloud and obscure the really identity of the really parties? If the obscurity of the identity of the really parties, is the actual endeavour, in that there is a reasonable success. It is really difficult to follow exactly who is who in these papers. The conduct of the parties greatly assisted me in determining exactly who is who in this matter. Although it is alleged that the property attached pursuant to the writ of execution issued out of this court in the judgment of a case between LESOTHO BANK [IN LIQUIDATION] and Expertype Secretarial Services (PTY) LTD and Another does not belong to LESOTHO
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BANK [IN LIQUIDATION] there is no one before this court who is claiming the right of ownership over that property.
If the attachment of property was made against the wrong party, it is that wrong party who should be before this court to claim its property. There is no one before this court who has claimed and or proved ownership of the said attached property. There was such a mix up in the procedure adopted that despite the claim that the applicant was not a party to the main action the procedure adopted to approach this court was the one specially designed for the parties to the dispute. The proper procedure if the property attached belongs to a third party, should have been in terms of rule 51 HIGH COURT RULES 1980. The application in terms of rule 51 HIGH COURT Rules 1980, can be made by the person who has a claim on the property attached in execution. According to the papers filed by this applicant, it has no claim on the property attached in the said execution. Therefore this application must fail on this reason alone.
K.J.GUNI
JUDGE
For the Plaintiff: Mr Shale
For Defendant: Ms Makhera
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