C. OF A.
(CIV) 13/2000

To be
read by M.E, Kumleben JA

NTSETSELANE
v NTSETSELANE SUMMARY

The
appellant in her application for rescission of an adverse order by
the court a quo, had not made out any of the grounds which
would have
entitled her to such. Her appeal has already been dismissed, reasons
to follow. I hand them down.

C OF A
(CIV) No.13/00

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

'MAHLOMPHO
NTSETSELANE APPELLANT

and

KEKETSI
NTSETSELANE FIRST RESPONDENT

LEROTHOLI
THEKO SECOND RESPONDENT

CORAM:
Van den Heever J.A.

Gauntlett J.A.

Kumleben J.A.

JUDGMENT

Van den
Heever J.A.

The
appeal in this matter was dismissed with costs on the 6th of October,
reasons to follow. I proceed to give them now.

On 7 July
1994 the appellant launched an allegedly urgent ex parte application
and was granted a rule nisi operating as a temporary
interdict. That
rule was discharged with costs on 11 February 1996.

2

On 3 June
1996 the appellant again launched proceedings by way of Notice of
Motion in which she sought, again ex parte, a rule calling
on the
respondent to show cause (without any return date being specified)
why

"(a) .......

2. The
   order granted ....on the 23rd day of February, 1996 (sic) with costs
   shall not be rescinded and the matter proceed ordinarily
   in a proper
   hearing

   
   

2. Execution
   shall not be stayed pending the outcome of the Rescission
   Application" with prayer (b) (as typed, but a c inserted
   in ink
   above this) to "operate as interim order with immediate
   effect."

   
   

The
application was opposed. It came before Guni J, who on 11 February
2000 dismissed the application for rescission, with costs
on the
scale as between attorney and client. It is against the dismissal of
that application that the appeal was brought. No appeal
was directed
in the relevant notice against the grant of costs on a punitive
scale, nor in argument before us.

3

The
application itself, the opposing affidavits and the reasons for
judgment all merit criticism. Merely as examples, the trial
judge
went quite outside the issues properly raised on the papers before
her. The respondent's attorneys inserted into the file
an interim
court order granted to the appellant in a different matter against a
respondent not party to the proceedings before
Guni J, with no
explanation of why this was done, and the respondent himself i.a.
deposed as points in limine

1. that
   the appellant "is in contempt of the order of this Honourable
   Court which dismissed her application, the rescission
   of which she
   seeks herein" with no allegation of fact on which to base this
   startling proposition

   
   

2. that
   "This application is contrary to rule 27(6)(b) of the High
   Court Rules 1980 as Applicant has not furnished security"

   despite the fact that this Rule has no bearing on the matter in
   issue.

   
   

Despite
these and many other flaws in both the opposition papers and the
reasons for judgment of the court a quo, dismissal of the
application
to rescind the earlier order was inevitable. The appellant made out
no case for the relief she sought.

Without
informing the court what conduct was temporarily interdicted by the

4

1994
rule, the appellant in her founding affidavit says that the matter
was postponed

on
several occasions. She waited to hear from her attorneys, Messrs
Phoofolo & Co, when the matter would be heard. It took her
two
years to inquire from them, since she did so only on 18 May of 1996.
At their office she was referred to "a Mr. Lehana"
with
whom she had never had any contact before. He

"informed me and explained to me that on the 23rd February, 1996
on the instructions of Mr. Phoofolo he appeared with Mr.
Pheko before
Justice Guni. He (Mr. Lehana) explained to the Judge that he was
unfamiliar with the matter and asked for a postponement
whereupon Mr.
Pheko for Respondent refused the said postponement. Mr. Pheko prayed
for the rule to be discharged with costs. Justice
Guni granted Mr.
Pheko's prayer and the rule was discharged with costs."

She
sought help from another lawyer and the rescission applicant was
launched.

She
alleges that her prospects of success are "reasonably good,"
advancing the grounds on which that contention is based
in a single
garbled passage containing minimal allegations of fact and consisting
principally of "legal" argument.

The
present application for rescission is made at common law. Established
common law grounds for rescission are fraud, Justus error
(in
confined circumstances)

5

when new
documents have been discovered (again in exceptional circumstances),
and

where
judgment has been granted by default (see Erasmus Superior Court
Practice B1 - 307, and the authorities there collected).

The
application for rescission in the present case rests on none of these
grounds. An attempt was made in oral argument to suggest
that its
basis was negligence of the applicant's legal representative. But no
such case has in fact been made out. It is not necessary
to consider
further whether, if proved, the negligence of a party's own legal
representative could properly form the basis of an
application for
rescission.

For these
reasons the application for rescission had to fail.

Signed:

L. van
den Heever

JUDGE OF
APPEAL

I agree:
Signed:

J.J.
Gauntlett

6

JUDGE OF
APPEAL

I agree:
Signed:

M.E.
Kumleben

JUDGE OF
APPEAL

Delivered
this 15th day of October 2000.

For the
Appellant: Mr. B.R.M. Masiphole

For the
Respondent: Mr. M. Mafantiri