IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) N0.6/2010
In the matter between:
TSEKO MACHAHA …................................................APPELLANT
LEROLE MPHEU …...................................................RESPONDENT
CORAM: RAMODIBEDI, P
HEARD: 12 OCTOBER 2010
DELIVERED: 22 OCTOBER 2010
Appeal – From a decision of the High Court reviewing and setting aside the decision of the Leribe Magistrate’s Court – Gross irregularity – The Leribe Magitrate’s Court granting appellant’s review by default notwithstanding the fact that the respondent was present at the Court Premises – The case not called out but simply heard in chambers – The High Court upholding the respondent’s review application – The appellant’s appeal dismissed with costs.
 The appeal in this matter marks a culmination of a protracted dispute between the parties who are fellow villagers at a place called Lejoe-Motho, Ha Phatoli in Leribe district. The real bone of contention is the right of use of a certain unnumbered piece of land which is admittedly not subject to registrable title. It is instructive to observe at the outset that the respondent is in possession of a Form “C” dated 3 April 2000 as proof of allocation in respect of the land. The appellant on the other hand has no Form “C” to prove his alleged allocation.
 The dispute between the parties originated at Lejone Local Court in CC 126/04. The respondent was the successful party. However, the appellant refused to comply
with the judgment in question. This prompted the respondent to launch contempt proceedings against the appellant in CR 26/06 of Lejone Local Court. However, while the proceedings in question were pending, the appellant filed an urgent application in the Leribe Magistrate’s Court in CC 210/06. He sought two prayers, namely, (1) a stay of contempt proceedings in CR 26/06 of Lejone Local Court and (2) a review of the proceedings in CC 126/04 of the same court.
 It is not disputed that the appellant sought and obtained default judgment against the respondent notwithstanding the fact that the latter was present at the court premises. The case was not called out but was simply disposed of in chambers in the absence of the respondent.
 Thereafter, the respondent launched an application in the High Court seeking an order, inter alia, reviewing, correcting and setting aside the decision of the Leribe Magistrate’s Court in CC 210/06. In paragraph 7 of his founding affidavit the respondent averred as follows:-
“I aver that even on the 22nd January 2007 I was present at the Court premises well before 8:00 o’clock in the morning and I even met with one Mr. Samuel Maphomolo a Messenger of Court who had served me with the originating application in CC: 210/06. I aver that as a consequence of my ignorance of procedure in the Magistrates’ Courts, I waited for our case, to be called out as it is done in Local Courts but nothing of that sort happened.
As time went by, I made a request to see the Clerk of Court and I explained the reason why I was there but I was told that the case had been disposed of. I was with my mother ‘Mathakane Mpheu whose case is similar to that of mine.”
 It is instructive to note that the respondent’s averments contained in the preceding paragraph were not refuted. It was the respondent’s case in these circumstances that the Leribe Magistrate’s Court committed gross irregularity in the matter. The High Court (Guni J) correctly, in my view, upheld the respondent’s complaint. In the process the learned Judge a quo said this:-
“At LERIBE MAGISTRATE’S COURT this applicant despite his presence at the court, the matter was dealt with and disposed off (sic) secretly in private. He was excluded. He was not called in to put his case before the court as was the case previously at LEJONE LOCAL COURT. This is actual prejudice. It is a blatant prejudice which need not be alleged and described as prejudice. No court of law can ignore that type of irregularity.”
I agree with the learned Judge a quo’s remarks in the circumstances.
 In this Court Adv. Thantsi for the appellant tried manfully, but with apparent lack of conviction on his part as I observed, to persuade us to accept two propositions, namely, (1) that the respondent should have proceeded by
way of an application for rescission of the Leribe Magistrate’s Court’s decision and (2) that the court a quo erred in dealing with the merits of the application and not confining herself to points raised in limine. There is, in my view, no substance in either of these propositions as I shall endeavor to demonstrate shortly.
 The fact that the respondent may have been entitled to apply for rescission is no bar to an application for review. He was not bound to apply for rescission. Section 21 of the Subordinate Courts Act 1988 does not assist Adv. Thantsi in any way as he submitted it does. This section reads as follows:-
“21. (1) The court may, on the application of the party in whose favour a judgment has been given, rescind or vary such judgment in the absence of the party against whom the judgment was granted, provided such last-mentioned party has received notice of the application and has been given an opportunity to appear at the hearing of the same.” (My underlining.)
I have underlined the word “may” to indicate my view that the section is not peremptory. There was, therefore, nothing to prevent the respondent from approaching the High Court by way of a review. In fairness to Adv. Thantsi, he finally conceded the point in these terms, “I was not aware that the section is permissive.”
 As I have said earlier, the appellant’s submission relating to points in limine is devoid of merit. The learned Judge a quo recorded the following statement in her judgment:-
“Mr Mahlakeng for the 1st respondent declined to deal with the merits of this application. He elected to confine his address to the points in limine which he raised and argued before this court. He properly and correctly declined to deal with the merits because his client has no proof of allocation to him against the proof which this applicant produced before the first instance court in this matter and also attached this time to his Founding Affidavit.” (Emphasis supplied.)
There is simply no justification to doubt the correctness of this statement. Once it is accepted, as it must, that Mr Mahlakeng for the appellant declined to deal with the merits of the application in question and that he elected to confine himself to the points in limine, then he has got only himself to blame. He took a gamble which has now backfired on him. This must of course redound to the appellant himself in the circumstances. In any event, the application itself was without merit.
 In all the circumstances of the case it follows that the appeal cannot succeed. It is accordingly dismissed with costs.
PRESIDENT OF THE COURT OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
For the Appellant: Adv. S.M. Thantsi
For the Respondent: Adv. L.E. Molapo