THE COURT OF APPEAL OF LESOTHO
of A (CIV) NO. 15/07
the matter between:
LEKULA MOTEBEJANE APPELLANT
and procedure - Default judgment - Rescission thereof - Principles
involved - Appeal against a High Court's refusal of an
rescind default judgment.
This is an appeal against a decision of the High Court refusing the
appellant's application for rescission of default judgment.
respondent, a cooperative society duly registered under the laws of
Lesotho, brought an action against the appellant by way of
of a sum of M41,265.38 being money due under account No. 1800727412.
of M48,530.36 being money due under account No.18002672612.
at the rate of 18.5% a tempore
and/or alternative relief.
sums of money were allegedly advanced by the respondent to the
appellant at his special request during February to September
The parties are on common ground that not only did the appellant file
a notice of appearance to defend the action but he also
filed a plea
which included a special plea as well in the following terms:-
advance of pleading in the merits of the action defendant hereby
specially pleads as follows:
There is no resolution by the appropriate reposition(sic) of the
plaintiff authorising the institution of the present proceedings
against the defendant. Thus, the present proceedings have not been
authorised by plaintiff.
There is no special power of attorney attached to the summons,
thereby rendering the institution of the present summons excipiable
for want of compliance with Rules of this Honourable Court. Wherefore
defendant prays that the action be dismissed with costs. "
Paragraphs 4 and 5 of the appellant's plea are, in my view, crucial
for a determination of this appeal. Therein the appellant
following important averments :-
PARA 5 THEREOF
Defendant denies that he owes plaintiff the sum of M41,265.38 in the
account NO. 1800727412 and/or at all and put (sic) plaintiff
Liability in respect of the sum of forty-eight thousand five hundred
and thirty [Maloti] and thirty six lisente (M48,530.36)
No.1802672612 is accepted.
defendant denies liability for the sum of M41,265.38, as well as
interest thereon as claimed, and costs ensuring (sic) therefrom.
22 May 2006, the learned Judge a quo granted default judgment in
favour of the respondent in terms of claim (b). As can readily
seen from paragraph 4(b)
of the appellant's plea as fully set out in the preceding paragraph,
the appellant had specifically "accepted" liability
Thereafter, the appellant launched an application for rescission of
default judgment. He duly filed a founding affidavit in support
thereof. In paragraph 8 of his founding affidavit, the appellant
confirmed once again that he admitted liability for the amount
M48,530.36 in claim (b). Strangely, he did not deal with the question
of a bona fide defence at all in respect of claim (b). Nowhere
deal with set-off as his counsel purported to do at the hearing of
the matter before us. In any event, the alleged set-off
is in respect
of claim (a) and not claim (b). Set-off is, therefore, irrelevant to
the determination of this appeal.
its opposition to the appellant's application, the respondent did not
file an answering affidavit. Instead, it filed a notice purportedly
in terms of Rule 8(10)(c) of the High Court Rules 1980. That Rule
provides as follows:-
Any person opposing the grant of any order sought in
the applicant's notice of motion shall:
within the time stated in the said notice, give applicant notice in
writing that he intends to oppose the application, and in
he must state an address within five kilometres of the office of the
Registrar at which he will accept notice and service
fourteen days of notifying the applicant of his intention to oppose
the application deliver his answering affidavit (if any),
with any other documents he wishes to include; and
he intends to raise any question of law without any answering
affidavit, he shall deliver notice of his intention to do so, within
the time aforesaid, setting forth such question."
The point raised by the respondent was couched in these terms :-
The application for rescission does not disclose a bona fide defence
as Applicant/Defendant has consented to judgment on
the said amount
in terms of Rule 38(10) of the High Court Rules."
38 empowers the defendant in any action for payment of a sum of money
to make an unconditional tender and payment into court
of the sum
claimed or any part thereof.
38(10) which the respondent relies upon simply provides as follows:-
in this rule shall prevent a defendant from stating in his plea that
he consents to judgment for a portion only of the plaintiff's
3 October 2006, the High Court dismissed the appellant's application
for rescission of default judgment. In his ruling the learned
quo expressed himself in three short paragraphs which require
quotation in full. He said the following:-
twin factors are firstly the fact that the Defendant Counsel had been
absent on the date of hearing when judgment was grounded
default. Secondly, it was this aspect that the date of hearing had
been on the uncontested motion. Against this (sic) two
whole background are (sic) not very arguable.
it is important as to what Plaintiff Counsel explained before the
Judge as to why he was proceeding in the absence of the other
The explanation is to be found as to why he proceeded when the matter
of liability seemed to be uncontested. Indeed it was
was admitted in his pleas except for the question of the power of
Attorney, Resolution and Locus Standi.
(sic) issues become unimportant and merely technical when the
question of liability is considered in the manner it was uncontested.
It is this aspect which has persuaded me that the Defendant's
application ought to fail. I would have considered awarding cost
to the Plaintiff.
am prepared half of the cost (sic) to the plaintiff. "
is unfortunate that the court a quo's ruling did not describe the
nature of the proceedings as well as the issues before the learned
Judge. This has not helped to solve the confusion relating to the
issues such as the exact nature of the default judgment granted
the date of the default judgment. Thus for example, the court order
filed of record erroneously puts the date of the default
3 October 2006, whereas the correct date is 22 May 2006. The order in
question simply reads: "Default judgment is
Nothing is said about the other prayers such as interest and costs.
To add to the confusion, the writ of execution
filed of record refers
to interest at the rate of 18.5% per annum plus costs despite the
fact that no mention is made of these items
in the court order of
default judgment. Needless to say that all these mishaps could easily
have been avoided if the attorneys involved
had done their work
properly. I should record here, however, that, in fairness to both
for the appellant and Mr.
for the respondent, they very fairly and properly apologised to the
Court for these shortcomings and many more.
turn now to the principles involved in an application for rescission
of default judgment. A good starting point is no doubt Rule
27(6)(a)(c) of the High Court Rules. It reads as follows:-
(a) Where judgment has been granted against defendant in terms of
this rule or where absolution from the instance has been
granted to a
defendant, the defendant or plaintiff, as the case may be, may within
twenty-one days after he has knowledge of such
judgment apply to
Court, on notice to the other party, to set aside such judgment.
At the hearing of the application the court may refuse to set aside
the judgment or may on good cause shown set it aside on such
including any order as to costs as it thinks fit. "
Rule, as it seems to me, is the core of the procedure involved in an
application for rescission of default judgment. The use
of the word
"may" in sub-rule 27(6)(a)(c) indicates that the court
hearing an application for rescission of default judgment
discretion whether or not to rescind the judgment. It is a judicial
discretion which must be exercised upon a consideration
of all the
relevant factors that bear upon the matter. As a matter of general
principle, an appellate court will not lightly interfere
exercise of a lower court's discretion in the absence of a material
misdirection resulting in a miscarriage of justice.
Apart from Rule 27(6)(a)(c) of the High Court Rules, it is now well -
established that a defendant in an application for rescission
default judgment must satisfy two requirements, namely (1) that he
was not in wilful default and (2) that he has a bona fide defence
the plaintiff's claim. See for example Chetty
v Law Society, Transvaal 1985 (2)
It is not strictly necessary to consider the question of wilful
default in this matter. The appellant's case ultimately turns
whether he has a bona fide defence to respondent's claim (b). This is
especially so since he has admitted liability in his plea.
submitted on the appellant's behalf, however, that the admission was
made only in the event of the special plea failing. Put
it is the appellant's case that the special plea constitutes his bona
fide defence in the matter. I proceed then to
correctness or otherwise of this proposition.
argument before us, the appellant's complaint raised in his special
plea was confined to a power of attorney only. It was accepted
appellant's behalf, however, that a power of attorney was in fact
filed in the matter in terms of Rule 15(1) of the High Court
1980, albeit a few days after the filing of the summons. Reliance was
placed on the South African case of Allan
Pohl, Otto & Theron (Pty) Ltd v Schoeman and Another 1954 (3) SA
593 for the proposition that failure to file a power of attorney with
the summons is fatal. It will be seen, however, that the
with a differently worded Rule 10 of the old Transvaal Rules of the
Supreme Court. The Rule in question provided as follows
every action which shall be commenced in the Court the attorney of
the plaintiff shall, before any process is sued out to
person to appear to answer any claim or demand, file with the
Registrar his power of attorney or warrant to sue, signed
a power to sue be given by the agent of the plaintiff or person
authorised to act for him, the attorney shall file with the
Registrar, together with such power granted to him, a duly certified
copy of the power of attorney granted to the agent, in terms
the power to sue has been given. "
By contrast, Rule 15(1) of the High Court Rules 1980 reads as
(1) Any party bringing or defending any proceedings in person may at
any time appoint an attorney to act on his behalf,
who shall file a
power of attorney and give notice of his name and address to all
other parties to the proceedings. "
is plain that, whereas the South African Rule prescribes that a power
of attorney must be filed before
any process is sued out, Rule 15(1) of the High Court Rules 1980 does
not have a similar provision. It is, however, strictly unnecessary
express a concluded view as to the time-limit for filing a power of
attorney in the High Court. It shall no doubt be sufficient
for me to
express my view that, in casu, the filing of a power of attorney,
albeit a few days after summons had already been filed,
substantial compliance with Rule 15(1)
the High Court Rules. That being the case, the appellant's so called
bona fide defence based on this issue fails. It was no more
tactical and technical ploy designed, as it is, solely for the
purposes of delay to the respondent's prejudice. That surely
follows from the foregoing considerations that the appellant failed
to show that he has a bona fide defence to respondent's claim
Accordingly, the learned Judge a quo was correct in dismissing the
appellant's application for rescission of default judgment
The result is that the appel is dismissed with costs.
APPELLANT: ADV. R. THOAHLANE
RESPONDENT: MR. T. MATOOANE
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law