IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/666/2010
In the matter between:
LESOTHO HOUSING AND LAND
DEVELOPMENT CORPORATION Applicant
M & C CONSTRUCTION (PTY LTD Respondent
In the application for rescission of judgement
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 13th Day of July 2011
1. In this application the Applicant (LHLDC) seeks for rescission of judgement. Adv. Zietsman for the Applicant argued that there was an irregularity with regard to the procedure followed upon which the judge granted the order of the 14th February 2011 by which an arbitrator was appointed. The basis for this argument was that even though the Applicant was served with the notice of set down, the matter did not appear on the roll and as a result Counsel did not know the judge who was seized with the matter. It was accordingly unprocedural for Mr Fraser, Respondent’s Attorney, to have approached a Judge without notice to Applicant’s Counsel, Mr Mpaka, that a final order would be sought when appearing before the Judge.
2. The Respondent had earlier approached this court, in the main application, for an order directing the parties to refer their dispute, emanating from a construction contract in respect of Masowe III Water Reticulation Project, to arbitration, in terms of the Arbitration Act, 1980. The order was granted to the Respondent on the 14th February 2011. Adv. Edeling for Respondent opposed the application for rescission.
3. The Applicant (LHLDC) asked the court to rescind the said orders on the ground that the order was irregularly obtained by default and without proper notice to the Respondent’s legal representative. The Applicant’s prayers were sought in terms of the High Court Rule 45 (1) (a) which Applicant’s Counsel argued was similar to Rule 49 of the South African Supreme Court Rules. The rule where there is an irregularity has been interpreted to say that the court can rescind the judgement without considering the common law principles concerning rescission. For example issues such as existence of bona fide defence, reasonable explanation and so forth need not be considered. That is why these latter issues were not canvassed by the Applicant’s Counsel. To him they ought not to be relied upon in his argument. Adv. Edeling thought on the contrary that move should have been considered. This included that the main application was simply for appointment of an arbitrator which the Respondent has sought because it was provided for in the parties’ contract and indeed a dispute deserving of arbitrator had arisen Counsel argued further that under Rule 45 (1) (a) there is no need to prove whether the party was not in willful default or whether there is a bona fide defence but instead a party has to show that the order was erroneously sought and granted in the absence of an applicant. Several authorities were cited in support.
4. As I understand it, Rule 42 (1) (RSA) or Rule 45 (1) of the High Court Rules do not purport to amend or extend the common law position. It is a procedural step designed to correct an irregularity and to restore the parties to the position they were in before the order was granted. See the case of Theron No v United Democratic Front (Western Cape Region) and Others 1984 (2) SA 532 (c).
5. Once the court is satisfied that there was an irregularity the court is bound to grant rescission. Counsel cited numerous court decisions in which he submitted that these cases were on all fours with the facts of this case. See the case of National Pride Trading 452 and Media 24 Ltd.
6. The Applicant’s further argument was to the effect that the Respondent had an obligation to notify the Applicant in writing of the said date allocated by the Registrar because in that instance, the Applicant would not have been in default of appearance in this court. Meaning that the date on which Mr Fraser appeared before the court that was not a date of hearing, properly speaking.
7. On the other hand Respondent contended that the order was not erroneously granted because all things considered there was nothing irregular about the proceedings which would entitle the Applicant to rescind this order. The Respondent further contended that this matter was strictly speaking unopposed because Applicant only filed “notice of intention to oppose and nothing was done thereafter”. It was then that they invoke Rule 8 (13) of the High Court Rules 1980. And then they notified the Applicant (as they are obliged) about the date allocated and agreed upon. This was in essence an unopposed matter in terms of the rules. In these circumstances the Respondent ought to do not more than serve Applicants with a date of set down. Accordingly Respondent could not be hamstrung by the absence of a court roll nor the non-attendance of Mr Mpaka. Mr Edeling asked this court to consider that when Mr Fraser appeared before the court the matter was as yet still unopposed in the interpretation of Rule 8 (13) because no answering affidavit had been made out. Hence the Applicant was entitled to set a date. That is why the Judge’s minute recorded that: “since December 2010 only notice of intention to oppose filed. (Mr Fraser) asks for appropriate order of court: matter stood down to wait for draft order to indicate Plewman J to be drawn.” Indeed the days allowing for the next step (in terms of the Rules) after notice of intention to oppose had long expired.
8. It is necessary at this juncture to refer to the facts giving use to the order of the 14th February 2011. It came about in the following manner: These facts are common cause.
9. An application was launched by M & C on the 29th November 2010 for declarators in paragraphs 1,2,3 and 4 and to engage the LHLDC in the arbitration process in terms of their contract under Arbitration Act, 1980. Respondent filed its notice of intention to oppose on the 7th December 2010. No papers were ever filed by LHLDC until the 14th February 2011 when the matter was allocated to a Judge and Mr Fraser appeared on the same day. The matter was initially set down to the 7th February 2011 when Mr Fraser and Mr Mpaka agreed that since then the Judge has not been allocated the case, new arrangements should be made. Mr Fraser’s office then issued a notice of set down for the following Monday.
10. It was also common cause that the Respondent issued two (2) set down to the Applicant dated the 7th and 14th of February respectively. On basis of the facts already set out an order was granted in the absence of Adv. Mpaka, which order the Applicant claimed that it was erroneously granted. Adv. Mpaka has not, strangely enough, settled any affidavit denying this or explaining the circumstances of the 14th February 2011. This could have given the court additional facts indicating something perhaps which is not on the record. See Standard Bank and Another v Absa Bank 1997 (4) SA 873 (4). This matter may safely be compared with Colyn v Tiger Foods Industries Ltd t/a Meadow Feed Mill (Cape) 2003 (6).
11. This crisp issue in this application is whether in the absence of any appearance on the 14th February 2011 an order secured by Mr Fraser may be rescinded under Rule 45 (1) on the ground that a court roll was absent, no judge was earlier allocated the case and Mr Mpaka was not warned that the Judge was ultimately secured on that date of the 14th February 2011.
12. This Rule 45 (1) prescribes the power of court which enables rescission or variation of orders and judgements when procedural errors occur and render the judgement sought and granted erroneously so within the meaning of the Rule. I do not think this rule can apply to counsel who for some reasons known to them decide not come to court and fails to explain pertinently the ground upon which he may have failed to appear hence the inference to negligence in those circumstances.
13. It must be noted that parties knew that the matter was set down for hearing on the 14th February 2011 but the Registrar did not place the matter on roll. It must have been, because no Judge had been allocated the case yet. Under the mew system which started in February 2010 once the matter seems to be opposed, it is allocated to a particular Judge and that Judge deals with matter. This as fact and practice is well known to Counsel in this country. This is normal even if the matter does not appear on the roll. The next step is normally to investigate as which Judge has been allocated the case. Naturally one has to seek to appear before that Judge, which this the Respondent’s attorney did. It is not an excuse therefore for a Counsel to argue that the matter did not appear on the roll, yet they know what has to be done. See the case of Danzinger v Fun City (Pty) Ltd, CIV/T/1174/1995 Guni J, where the learned Judge said in an almost similar situation that:
“It was not only discourteous to deliberately stay away from attending the court simply because the clerks in the Registry office had inadvertently omitted showing on the motion roll that the application for summary judgement will be heard as notified, but was directly prejudicial to the interests which he had duty to protect, those of his client. This was so more particularly when all the practicing attorneys and advocates of this court know the practice of placing before the judge at the end of the matters appearing on the roll, all those matters which were inadvertently left out.”
I accordingly agreed with Adv. Edeling that no irregularity could be proved.
14. There is no where in the papers where it has been shown that Mr Mpaka the erstwhile Applicant’s Counsel (who may have inclined not to oppose) did something about the matter on the 14th February 2011. There is accordingly no question of any irregularity on the part of the Respondent. The case was set down for hearing properly and in accordance with the Rules of Court. As far as this court is concerned, the rules had been fully complied with and the notice of set down had been duly served. As the judge I was satisfied ex facie the notice of set down, which had been properly served and Mr Fraser appeared as he should have. For that reason the order was therefore not erroneously granted.
15. The Applicant’s Counsel has failed to address the court on the issue of their failure to file necessary opposing papers under Rule 8. Had it been accordingly to the old practice, things being normal (of it was not for this new system) the matter could have been placed before the Judge on call or sitting on the motions court because it was not defended as the rules required. The defining difference, which makes for an even stronger case, is that the matter was allocated to a Judge and the Registrar had already allocated the date because the matter was unopposed in terms of Rule 8 (13).
16. Perhaps an explanation could have come from a statement or affidavit from Mr. Mpaka. In the case of Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mill (Cape) 2003 (6) SA Jones AJA at 8g para 9 remarked as follows:
“The Defendant described what happened as a filing error in the office of his Cape Town attorneys. That is not a mistake in the proceedings. However, one described what occurred at the Defendant’s attorneys’ offices which resulted in the Defendant’s failure to oppose summary judgement, it was not on procedural irregularity or mistake in respect of the issue of the order. It is possible to conclude that the order was erroneously sought by the Plaintiff or erroneously granted by the Judge. In the absence of an opposing affidavit from the Defendant there was no reason for Desai J not to order summary judgement against him.” (my emphasis).
17. In my view, there is no merit in Mr Zietsman’s submission. I do not find any support for his submission that there could have been any irregularity. The facts of this case are clearly distinguishable from the facts of other cases clearly on the other basis that if the court which granted the order on the 14th February 2011 if it did not see the set down as properly served on the Respondent, it would not have granted the order. Nothing brings the present case within the ambit of this offence contained the Rule 45 (1) because there was no procedural failure on the part of the Respondent’s Counsel because the Applicant was properly served by a notice of set down as prescribed by the Rules.
18. I therefore reject the Applicant’s argument for above reasons because when the matter was heard, the rules had been substantially complied with.
19. I accordingly dismiss this application with costs.
T. E. Monapathi
For Applicant : Adv. Zietsman
For Respondent : Adv. Edeling
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