CIV/APN/184/95
IN THE HIGH COURT OF LESOTHO
In the Matter Between:
MALEBAKAE C. MATETE APPLICANT
And
THOLOANA MOTSOENE 1st RESPONDENT
THEEPE MAKHAKHE 2nd RESPONDENT
LUCY 'MABATHOANA 3rd RESPONDENT
MESSENGER OF COURT 4th RESPONDENT
JUDGMENT
Delivered by the Honourable Ms Acting Justice N. Majara on the 9th February 2005
This is an urgent application wherein applicant is seeking relief in the following terms:
That a rule nisi be issued calling upon respondent to show cause (if any) why;
The rules pertaining to modes and periods of service shall not be dispensed with on account of urgency of the matter;
(b)The execution in CIV/T/184/1995 shall not be stayed pending the finalization of the rescission application;
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The judgment in CIV/T/184/1995 shall not be set aside and rescinded;
Respondents shall not be ordered to pay the costs of this application;
Further and/or alternative relief.
That prayer 1(a) and (b) should operate with immediate effect as an interim Court order.
On the 7th September 2004 applicant was granted an interim order by the Honourable Hlajoane J. and the rule was made returnable on the 13th September 2004. On the 13th September 2004 the matter was postponed to the 20th September 2004 and was placed on the contested roll.
On the 20th September 2004 the matter came before me. Both counsel for applicant and respondents respectively had filed their heads of argument and this court is greatly indebted to them. Mr Mahlakeng, counsel for respondents had raised some points in limine but before he could argue them, Ms Mochaba, counsel for applicant raised an objection that Mr Mahlakeng should not be allowed to argue the matter because respondents had not filed any notice of intention to oppose
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and as such applicant should be allowed to proceed by way of default.
In reaction, Mr Mahlakeng argued that the fact that they were before the court is opposition and further that an opposing affidavit had been filed. He added that for the sake of justice, when a party is before the court as a result of having been served, he cannot be thrown out of court. He informed the court that both counsel had been in court when the matter was set down after applicant's counsel had appeared before the Honourable Monaphathi J. and was ordered to serve respondents with notice and not to proceed ex parte. Mr Mahlakeng also informed the court that despite that order, counsel for applicant surreptitiously took the file before the Honourable Hlajoane J. whereby she obtained the interim order.
Respondents' counsel also stated that when both counsel were before the Honourable Peete J. in the motion court, Ms Mochaba informed the court that he, Mr Mahlakeng was appearing for respondents. It was therefore his submission that against this backdrop, applicant had took further steps despite respondents' failure to file a notice of intention to oppose and that in terms of Rule 30 of the High Court Rules applicant had condoned the non-filing of same. He added that
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on the 17th September, 2004 applicant had seen their opposing affidavit and did not take any steps to object but instead, she filed a replying affidavit. His further submission was that as per the provisions of Rule 30, applicant ought to have applied to the court to have the irregular step set aside and that since she did not do so but took further steps and filed the replying affidavit the objection she raised should be dismissed.
Mr Mahlakeng added that since no prejudice had been suffered as a result of the non-filing of the notice of intention to oppose the court has the discretion to allow respondents to proceed in terms of Rule 59 of the High Court Rules.
In reply, Ms Mochaba did not address the court on any of the arguments raised by Mr Mahlakeng but instead raised another objection to the effect that Mr Mahlakeng had no locus standi to appear for respondents in these the rescission proceedings since he had not been instructed by respondents to oppose the application. She argued that the opposing affidavit was filed by Mr Mahlakeng himself and none of the respondents had filed any opposing papers and that this was proof that he had not been instructed to oppose the application.
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Since Ms Mochaba had raised a new point, Mr Mahlakeng responded and argued that Ms Mochaba's assertion is a matter for evidence not to mention the fact that when applicants were ordered to serve papers, they served them on him, Mr Mahlakeng. He contended that there was nothing wrong with the opposing affidavit having been made by him because he was the attorney of record as the Power of Attorney in the original file will show. He argued that anything pertaining to the Power of Attorney is peculiarly known to him and that all communication since summons was issued is known to him and respondents get it from him. His submission was that he is competent and compellable to make the deposition and as such the objection should be overruled as having no merit.
Having heard both counsel, I dismissed the objections raised by applicants and indicated that my reasons would follow. I now proceed to give my reasons.
With regard to the first objection that respondents should be thrown out of court because they had failed to file Notice of Intention to Oppose, I agreed with Mr Mahlakeng's contention that applicants were barred from making such an application because they had taken further steps fully cognizant of the
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irregularity. This is in accordance with the provisions of Rule 30 (1) of the High Court Rules. The Rule provides as follows:
Where a party to any cause takes an irregular or improper proceeding or step any other party to such cause may within fourteen days of the taking of such step or proceeding apply to court to have it set aside. Provided that no party who has taken any further step in the cause with knowledge of the irregularity or impropriety shall be entitled to make such application." (my underlining)
In casu, not only did applicants file their replying affidavit to the respondents' opposing affidavit, but they also went ahead to set the matter down for hearing with counsel for respondents. This assertion was not denied by Ms Mochaba.
In the light of these circumstances, I dismissed the objection.
The second objection was to the effect that Mr Mahlakeng had no locus standi to appear in the matter as he had not been duly instructed by respondents to represent them in these proceedings.
The present application for rescission flows from the main action wherein Mr Mahlakeng was respresenting respondents (plaintiffs therein) as the Attorney of record. Amongst the documents in the court's file is a Special Power of Attorney appointing Mr Mahlakeng as the Attorney and Agent of
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respondents. The power of attorney authorizes Mr Mahlakeng to inter alia,
"... make all and any payments whatsoever which may be necessary and desirable for the proper conduct of the case; to proceed to the final end and determination thereof (my underlining); and generally for effecting the purposes aforesaid, to do or cause to be done, whatsoever shall be requisite, as fully and effectually, to all intents and purposes, as might or could do if personally present and acting therein...."
From the wording of the above quoted portion, Mr Mahlakeng has been authorized to do everything concerning this case to its final end and determination. This being the case the question is; is it correct for Ms Mochaba to suggest that in the application for rescission proceedings concerning the same parties and the same cause of action, Mr Mahlakeng needed further instructions and/or another Power of Attorney before he could be regarded as having been duly instructed to appear for respondents in casu?
In Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa 4th Edition at p223 when dealing with the question of authority conferred by a Power of
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Attorney it is stated that as per the case of Poligan v Rickagio (1928) NLR 563 at 465;
"If a power confers certain specific authority in connection with an action and, as is often the case, concludes with general
words, such as 'and generally for effecting the purposes aforesaid to do or cause to be done whatsoever shall be requisite1, such general words must be read, not as extending the specific authority granted by the power, but as limiting the authority to matters falling within or incidental to the authority as set out in the power, (my underlining)
Bearing the above statement in mind, where a party applies to have a judgment rescinded, in my opinion, that is incidental to the main case. It is therefore not logical to argue that an application for rescission of judgment is a different matter from the main when the application is actually asking the court to set aside the very matter that another party was granted judgment on. This being the case in casu, Mr Mahlakeng's authority is to see to the final determination of the case. This therefore obviously means that he does have the authority to represent respondents in an application where judgment that was granted in their favour is being challenged. This matter has not yet come to its final determination and counsel for respondents' authority has therefore not yet come
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to an end. I therefore disagree with the contention that the mere fact that respondents have not filed their opposing papers is proof that Mr Mahlakeng has no authority to represent them in these proceedings. At any rate, it is not unheard of in some cases, for counsel to file affidavits, depending on the particular circumstances of each one.
For these reasons, I dismissed the objection.
Mr Mahlakeng, then proceeded to address the courts on the points that respondents had raised in limine each of which I proceed to consider separately in the sequence that they were raised:
The application is defective and improperly before court in that applicant has failed to rebut the assertion that the signature which purports to be that of her attorney is not the signature of the said attorney.
On this point, Ms Mochaba argued that Mr Mahlakeng does not lay the basis of this averment and that the signature was that of Mr Khasipe as even the papers emanate from his office.
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With regard to this issue, all that the court had before it was the respondents' averment and applicants' denial without any further form of substantiation from both sides. It was Mr Mahlakeng's word against Ms Mochaba's and as a result, I found it difficult to make a finding on this point and as a result, I dismissed it.
The application is irregular, defective or improper inthat the certificate of urgency accompanying the application does not comply
with the rule of practice requirement that a certificate of urgency must set out grounds for urgency.
In response, Ms Mochaba argued that Rule 8 (2) does not anywhere say that the grounds of urgency must be stated.
With regard to this point, the applicable Rule is Rule 8 (22) (c) of the High Rules and it provides as follows:
"Every urgent application must be accompanied by a certificate of an advocate or attorney which sets out that he has considered the matter and that he bona fide believes it to be a matter for urgent relief.'
As Ms Mochaba rightly contended, the above rule does not specifically state that grounds of urgency need to be
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stipulated. However, in the case of The Commander LDF & Ano. V Matela 1999-2000 LLR /LB p 13 at p 16, the Court of Appeal laid down the rule that certificates of urgency accompanying urgent applications must set out brief grounds for urgency or risk dismissal of such applications. This position was later reiterated in the case of Sea Lake (Pty) v Chung Hwa Enterprise Co, (Pty) Ltd & Ano. 1999-2000 LLR/LB p 391 at p 392, where the court went further to say that not only do parties risk a dismissal of their applications but also special costs orders in appropriate cases.
It has therefore become a rule of practice that certificates of urgency must briefly set out grounds of urgency which if not complied with, courts are advised to punish the offending litigant with costs de boniis propris in deserving cases.
In casu, applicant's application was accompanied by a Certificate of urgency prepared by attorney B.M. Khasipe. However, as Mr Mahlakeng rightly pointed out, the certificate does not set out any grounds of urgency.
Ms Mochaba's suggestion that paragraph 25 of applicant's founding affidavit should suffice is therefore devoid of merit in the light of this prerequisite which has been laid down by the Court of Appeal. I therefore uphold this point.
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The application is irregular, defective or improper in that it is not addressed to the Registrar as is required under the provisions of Rule 8 (2) of the High Court Rules.
Ms Mochaba's reaction to this point was that the purpose of the rule is to make the Registrar aware of the application at hand and that such purpose has been served inasmuch as there is no application that can be set down for hearing without having passed through the notice of the registrar.
Rule 8 (2) of the High Court Rules provides as follows:
"When relief is claimed against any person, or where it is proper to give any person notice of such application, the notice of motion shall be addressed to both the Registrar and such person, otherwise it shall be addressed to the Registrar only, (my
underlining)
My understanding of the above rule is that it is meant to notify the person against whom relief is claimed so that he/she is aware of the case lodged against him/her and can prepare his/her defence. In my humble opinion, the emphasis in this rule is notification of the other person. If not, the rule makes it mandatory for applicant to address the notice to the Registrar hence the use of the word shall.
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In casu, the Notice of Motion is couched in the following terms:
NOTICE OF MOTION
In the Matter of Application For rescission and stay of Execution
Sirs,
KINDLY TAKE NOTICE THAT AN Application will be made before this Honourable Court on behalf of 'MALEBAKAE MATETE (hereinafter called the applicant) on the 25th August, 2004 for an order in the following terms
It can clearly be seen from the above that the notice of motion was not addressed to the Registrar despite the mandatory provisions of the Rule.
Ms Mochaba's argument that this factor notwithstanding, the purpose was served in that the Registrar became aware of the application hence why it was set down for hearing is lame. It has been stressed time and again that Rules of Court should be complied with, especially mandatory rules. They are there for a purpose. One of the basic reasons is that court process should be as systematic and as orderly as possible to avoid anarchy. This kind of argument is therefore worrying to say the least because it means that rules can be circumvented with impunity as long as matters can end up before the court. This cannot be allowed.
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What makes matters worse in casu is that applicants have not even applied for condonation and/or supplied the court with any circumstances that could warrant such condonation save to argue that the purpose of the said Rule was served even if the provisions of the rule were not complied with. This attitude is disconcerting. See my remarks in the case of Hajee Haroon Asman v The Chief Magistrate and 2 Ors CIV/APN/466/2004 p 10. For these reasons, I uphold this point.
The application is irregular, defective, and/or improper in that the applicant has not complied with the mandatory requirements of Rule 8 (8) which are:
(i) A day on or before which the Respondent is required to inform applicant if he intends to oppose the application.
(ii) A stated day on which the application would be set down should there be opposition.
It was Ms Mochaba's contention that the last paragraph of the Notice of Motion clearly stated that the offices of B.M. Khasipe & Co. are the ones at which she will accept service and that these are within five (5) kilometers of the offices of the Registrar. This did not address the particular point raised by Mr Mahlakeng under this Rule. However, that factor notwithstanding, I proceed to deal with the issue.
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The provisions of Rule 8 (8) are stated in the following terms;
"In such notice (my underlining) the applicant shall appoint an address within 5 kilometres of the office of the Registrar at which he will accept notice and service of all documents in such proceedings, and shall set forth a day not being less than five days after service thereof on the respondent on or before which such respondent is required to notify the applicant in writing whether he intends to oppose such application, and shall further state that if no such notification is given the application will be set down for hearing on a stated day, not being less than seven days after service on the said respondent of the said notice."
In casu, applicant initially approached the court ex parte and not on notice and the above quoted provisions apply where application is made on notice. Applicant only notified respondents as per the orders of court after she had launched the application and it had already been placed before the court. The provisions of the rule therefore did not apply at the time she launched this application. Whether applicant did so rightly or wrongly is not in issue at this stage and with regard to the determination of this particular point.
However, the application was eventually moved on notice as per the order of court. Upon perusal of the Court's file, it would appear that as Mr Mahlakeng has pointed out, applicants did not prepare a new set of papers for purposes of
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moving the application on notice. This means that since they initially intended to proceed ex parte, they did not comply with the provisions of the section by providing the day on which respondents were required to notify them that they intended to oppose the application which is what they was supposed to do once the application was on notice. What is even peculiar is that applicant herself tried to use this very factor in her favour by moving the court to deny respondents audience on the date of hearing as already stated above, for the reason that they had not filed notice of intention to oppose. I do not think that any party should be allowed to try and circumvent the rules only to come back later and try to take advantage of the situation under such circumstances. I accordingly uphold this point.
As per the provisions of Rule 27 (6) (a) an application for rescission of a default judgment has to be on notice and applicant in casu has not proceeded on notice. With regard to this point, counsel for applicant argued that service was effected upon respondents and that applicant was accordingly served with all the relevant documents in the application as this was even 'per Judge's order.'
Rule 27 (6) (a) of the High Court Rules provides as follows:
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“ 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."
With regard to this particular point, true enough, applicants initially approached the court ex parte. The application was however not entertained by the court at that stage. Instead, applicants were ordered to go back and give notice to respondents and on the face of things, respondents were duly given notice as a result of which both parties filed their papers. If the court had gone ahead and entertained the application, then this point would have some merit. But as things stand, it ceased to be valid as soon as the ex parte application was not entertained but applicants were ordered to give notice. For these reasons, I therefore dismiss this point.
Applicant is time-barred as per the provisions of Rule 27 (6) (a).
Applicants' response was that the application was made within the required time limit regard being had to the statutory computation of time.
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As I have already quoted above, Rule 27 (6) (a) requires that an application for rescission should be made within twenty-one days after applicant has knowledge (my underling) of the default judgment.
In casu, applicant averred in her founding affidavit paragraph 13 thereof that she first became aware of the writ of execution against her on the 27/07/04 when the messengers of court went to her place at Mohalalitoe. This was not disputed by respondents. I therefore
accepted it. Applicant went further to state at paragraph 20 of the same affidavit that from the Court's file, default judgment was granted against her by this court on 31/08/98 and that she had never been served with the court's order. This point was also not disputed by respondents and I also accepted it.
These proceedings were then launched on the 17/08 2004. The time period between the 27/07/04 when she first became aware of the writ of execution and the 17/08/04 when the applicant approached the court is 20 days, inclusive of weekends. I therefore agree with Ms Mochaba that the requisite 21 days within which applicant ought to have launched the application had not yet lapsed. It is therefore improper to suggest that applicant has not complied with the above rule. This point is therefore dismissed.
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Applicant has failed to file security as per the provisions of Rule 27(6) (b).
On this point, Ms Mochaba disputed that security had not been paid and went on to state that the receipt number reflected at the top of the Notice of Motion was proof of such payment. She argued further that the Registrar could not have entertained the application for rescission without payment of security which was in the amount of M3, 000-00.
Upon perusal of the Court's file, I noticed that indeed at the top of the Notice of Motion, payment of security is reflected in the amount of M3, 000-00. The receipt number and the date of payment are also reflected. On the face of it and in the absence of any proof to the contrary, applicant has paid security as per the requirements of Rule 27 (6)(b). I therefore dismiss this point as invalid.
The affidavits filed in support of the application are irregular and /or defective for non-compliance with Regulations 4 and 5 of the Oaths & Declarations Regulations of 1964.
It was Ms Mochaba's brief response that the deponent was bare and that rules and regulations had been complied with.
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Both Regulations 4 and 5 of the Oaths & Declarations Regulations of 1964
make provision for a variety of procedures which ought to be followed with regard to oaths and declarations pertaining to affidavits, as well as the duties of the Commissioner of Oaths respectively. Each of the regulations has numerous subsections. For instance, Regulation 4 alone makes provision for the form of words to be used in an affidavit, the procedure to be followed when the commissioner
administers an oath, the form of words to be used in an affirmation, signature of deponent etc. Regulation 5 in turn provides for a variety of duties of the commissioner.
This being the case, I believe that a party who wishes to raise non-compliance with any or all of the relevant provisions, ought to specify the exact procedure and or form he avers has not been complied with otherwise the court is left with the responsibility to now find out as to what it is exactly that it is being required to make a ruling on. I do not believe that it is fair for any party and/or his legal practitioner to expect the court to do all the spade work and go through the purported offending affidavit in search of the provision that has supposedly not been complied with especially where as I have already pointed out, such provision(s) deals with several
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issues. That is in my opinion, the duty of the party who puts non-compliance with the requirements in issue.
This being the case, I agree with Ms Mochaba with respect to this particular point, that the averment is bare. Mr Mohlakeng has simply averred that the two regulations have not been complied with. In the absence of his guidance to the court with any concrete information as to the particular procedure, form and/or duty which he avers has not been complied with, the court is not going to expend time trying to find that out. This particular point therefore falls by the wayside.
For the above reasons, the application is dismissed with costs on the basis of the second, third and fourth points which respondents had raised in limine.
N. MAJARA
ACTING JUDGE
For Applicant : Ms Mochaba
For Respondents : Mr Mahlakeng
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