HIGH COURT OF LESOTHO
matter of :
RANKHETHOA 1st Applicant
RANKHETHOA 2nd Applicant
LETUXA 1st Respondent
DEPUTY SHERIFF FOR THE DISTRICT OF LERIBE 2nd Respondent
by the Hon. Mr. Justice M.L.Lehohla on the 29th day of April, 1991
applicants herein seek to obtain an order :
1. Rescinding and setting aside the default judgment granted earlier
in a judgment entered in favour of the then plaintiff Mpatluoa
against the then defendants Mahao Rankhethoa and Thuso Rankhethoa
respectively. The applicants also seek an order of retrial
Civil Trial Number 430 of 1984.
2. Restraining and restricting the 2nd respondent from :
(a) Executing and levying writs of execution on applicants.
(b) Restraining and restricting selling and disposing of any property
executed against the respondents.
applicants rely on their own affidavits supported by those of Mr.
Gabriel N. Mofolo all filed in November 1989.
rely on replies contained in their own affidavits including a fresh
one of Mrs Adelice M.Mofolo all filed in December
leave of Court and much long after the respondents had filed their
answering affidavits and replies relevant thereto were
applicants filed a further affidavit styled "Supporting
Affidavit" sworn to by one C. Lechesa describing himself
Chairman of the Board of Transport in the Ministry of Transport and
Traffic. This affidavit was filed on 26th March, 1990.
Mofolo for the applicants argued that if this document i.e. the
affidavit of C. Lechesa is not accepted the case for the applicant
defendants would be prejudiced. He buttressed his argument by
stressing that the element of prejudice will the more keenly be felt
because the judgment sought to be rescinded had been given without
any oral evidence having been heard in the proceedings.
Or. Tsotsi submitted that this application was presumably made in
terms of Rule 45(1)(c) reading :
"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 -
(c) an order or judgment granted as a result of a mistake common to
Mofolo urged on the Court to consider that because the matter came
before Court the plaintiff made a sworn statement that he
transportation permit to convey goods and passengers. He submitted
further that the crux of the matter consists in the plaintiff
that he has such a permit. If he had it that would be the end of the
matter. But if he didn't then the application is well
Mofolo pointed out that the plaintiff in fact had no transportation
permit. He accordingly submitted that the plaintiff was
to trade as he did. Thus the Court could not support him in what was
lacking in his case.
on Jones and Buckle 7th Ed. pages 119 and 120, Dr. Tsotsi submitted
that a mistake common to the parties occurs where the
both mistaken as to the correctness of certain facts. It is not
applicable where the mistake is that of one of the
further to show that the grounds upon which the rule allows a
judgment to be rescinded in certain cases of error cannot
common law to the effect that a non-fraudulent misrepresentation
including justus error on the part of the Court is not
a ground for
setting aside a judgment induced by error. See Herbstein and Van
Winsen 3rd Ed 472.
to Adv. G.N. Mofolo the alleged mistake common to both parties was
that on the grounds of the High Court he met Mr. Mpopo
of the office
of the Attorney for the 1st respondent and he informed him that the
Court file in CIV/T/430/84 was missing and the
matter would therefore
be given a subsequent date.
answering affidavit Mr. Mpopo denies these allegations. He states
that he did not deal with CIV/T/430/84 and had no information
the file was missing.
appears to me that there are many disputes of fact in this matter.
For instance Mr. Mofolo says that on 3rd March, 1989 the 1st
respondent did not appear in the High Court. The 1st respondent
supported by his attorney asserts that he and his attorney appeared
in Court that day and the matter was heard and finalised in the
plaintiff's presence and that of his Counsel.
notes taken as evidence of one Ezekiel Mpatluoa Letuka show that if
Mpatluoa Letuka is the 1st respondent in this matter
he did give
evidence before me on 3rd March 1989. It is inconceivable that when
he did so he was absent from this Court that day.
Tsotsi submitted that Mr. Mofolo's allegation
first knew when writs were served that judgment had been entered
against the judgment debtors was erroneous because Annexure
a letter written to 1st defendant's attorney informed him on 20th
April, 1989 that the judgment was entered by default
on 3rd March
1989. There is further evidence of Annexure "D" a Notice of
Taxation addressed to the applicants' attorneys.
This document was
filed in Court long before the 1st writ was filed. It is neither here
nor there if these things did not come
to Advocate Mofolo's notice
for they were brought to the applicants' attorneys attention.
listened to the arguments and read papers filed and cannot help
coming to the conclusion that this application is misconceived.
would therefore dismiss it with costs.
Plaintiff : Dr. Tsotsi
Defendant : Adv. G.N. Mofolo
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