CIV/APN/505/2007
CIV/APN/475/2007
In the matter between:
and
THATO PITSO 1st Respondent
TEACHING SERVICE DEPARTMENT 2nd Respondent
MINISTER OF EDUCATION 3rd Respondent
THE MASTER OF THE HIGH COURT 4th Respondent
THE ATTORNEY GENERAL 5th Respondent
STANDARD BANK LESOTHO 6th Respondent
MATHATO EVODIA PITSO 7th Respondent
RULING
Delivered by Hon. Mrs Justice A. M. Hlajoane on 7th April, 2008.
This is an Application for rescission of judgment that was granted in CIV/APN/475/2007. But before going into the merits of the case the Court first dealt with the point in limine raised by the Applicant. The Applicant has challenged the notice of intention to oppose filed by the Respondents Counsel as an Advocate.
The Applicant was saying that the intention to oppose be considered as non-existent and fatally defective for having been signed by an Advocate. He was saying this relying on the provisions of Rule 20 of the High Court Rules.
It reads:-
Every Pleading shall be signed personally by the party or by an Attorney or by an Advocate duly instructed by such attorney. (my underlining)
The Respondents Counsel on the other hand submitted that the Rescission Application was a continuation of CIV/APN/475/07, in which Application the Pleadings were signed by an instructing Attorney. That the two Applications ought to be treated as one and both be given the same case number. He further argued that he had been instructed by the same Attorney who instructed him in
CIV/APN/475/07. He nonetheless confirmed that in terms of the Rules of Court, an Advocate has power to sign Court processes when duly instructed by an Attorney.
Respondents Counsel also argued in the alternative that, in the event that the Court should find that there has been non-compliance with the Rules of Court, that the Court should condone the con-compliance in terms of High Court Rule 59.
Notwithstanding anything contained in these Rules the Court shall always have discretion, if it considers it to be in the interests of justice, to condone any proceedings in which the provisions of these rules are not followed.
He further pointed out that the Applicant served the Rescission Application at the offices of the Respondents Counsel, and not on the 1st Respondent himself and as such was indicative of the fact that he recognized him as having been duly instructed. He asked that
Applicant be estopped from raising this point of law. He further asked the Court to accept the intention to oppose also on the ground that the Respondents counsel has deposed to the opposing affidavit to show his intention to oppose the matter.
In reply Applicants Counsel submitted that the present Application could not be considered to be a continuing Application but a fresh Application. He said he only served the papers on Respondents Counsels offices because his name appeared on the originating Application sought to be rescinded. That he has not condoned the irregularity as he has raised it in the alternative. He further argued that for condonation of the irregularity, the Respondents Counsel ought to have formally applied for condonation so that it could be opposed if necessary.
True enough, a rescission Application would always be a result of a former Application where the Court would have granted judgment; it would not just come on its own. A Rescission Application would therefore come as a separate Application requiring a fresh mandate. Counsel ought to have thus indicated in his address the Attorney who instructed him afresh.
It might be that Counsel as an Advocate had been given instructions directly by his client as might be the practice, but the law is very clear that an Advocate has to be instructed by an Attorney, and thus has to be clear from the papers filed.
In the interests of justice the Court would condone the irregularity relying on the provisions ofRule 59 of the High Court Rules. The notice of intention to oppose is thus allowed to stand.
A. M. HLAJOANE
JUDGE
For Applicant: Mr Thabane
For Respondent: Mr Khoali
