C OF A (CIV) NO.37/09
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:-
MOTSAMAI JACOB MOKATSE APPELLANT
THE MANAGER – BOLIBA SAVINGS
AND CREDIT FIRST RESPONDENT
CO-OPERATIVE SECOND RESPONDENT
CORAM : SMALBERGER JA
APPEAL HEARD : 14 APRIL 2010
JUDGMENT DELIVERED: 23 APRIL 2010
The appellant instituted motion proceedings in the High Court against the respondents. Within the time limit provided for in the notice, the respondents gave the appellant notice in writing that they intended to oppose the application. The notice, although technically defective, clearly evinced an intention by the respondents to oppose. Notwithstanding this the appellants applied ex parte for judgment in terms of the prayers in the notice of motion. There was a dispute as to whether or not the notice of intention to oppose was in the Court file but a copy thereof was handed to the judge a quo at the hearing of the application. The judge nevertheless granted judgment as prayed.
Held: (1) The appellant should not have proceeded with the application
without at least giving the respondents notice of his intention to do so;
On the assumption that the judge a quo had properly considered the terms of the notice, he should not have granted the application.
Thereafter the respondents applied for rescission of the judgment. The application was made in terms of rule 45 (1) (a) on the grounds that the order or judgment was erroneously sought or erroneously granted in the absence of the respondents. The Court a quo issued a rule nisi which called upon the respondent to show cause, inter alia, why the order should not be rescinded. The application for rescission was opposed and was later argued before the judge a quo who not only wrongly assumed that the respondents had themselves rescinded the order but dismissed the main application.
(3) The respondents did not rescind the order nor was it
competent for them to do so;
(4) The judge a quo was not entitled to even consider the main application which was not properly before him or ripe for hearing;
The appellant was wrong in attempting to apply the provisions
of rule 27 (6) to an application for rescission in terms of rule 45;
The decision of the judge a quo to set aside the main application
should be dismissed; the rule nisi should be confirmed; the matter should be referred back to the High Court for the continuation of proceedings in the main application; and there should be no order as to costs in either application.
 The appellant, a duly admitted advocate, is employed by the Lesotho Government as the deputy registrar of deeds. He instituted motion proceedings in the High Court (“the main application”) against Boliba Multi-Purpose Co-operative (the second respondent) and its manager (the first respondent). The second respondent is a duly registered co-operative society in terms of the Co-operative Societies Act, 6 of 2000. In what follows the second and first respondents will be referred to as the co-operative and Mr Mpota respectively.
 The appellant’s notice of motion was dated 6 August 2009 and provided that application would be made for certain relief against the respondents on 24 August if the respondents failed to notify the applicant’s attorney of their intention to oppose on or before 17 August. The notice also provided for the respondents to file their answering affidavits, if any, within fourteen days of the notification of the intention to oppose. Service of the notice of motion was effected on or about 12 August and on 24 August application was made in the High Court, without notice to either respondents, for the prayers sought. The matter came before Mofolo AJ who granted all the relief claimed including “such further or alternative relief”.
 The order of Mofolo AJ was served on the respondents on 25 August and three days later they applied to the High Court, apparently also ex parte, for a rule which called upon the appellant and “the Sheriff/Deputy of Court” why, inter alia, the judgment of 24 August should not be rescinded, why execution of the judgment should not be stayed pending the final determination of the application and why the appellant should not pay the costs (“the rescission application”). This application, too, was heard by Mofolo AJ who on 28 August granted a rule, returnable on 14 September 2009, in terms of the respondents’ prayers under the heading Interim Court Order.
 The rescission application was supported by an affidavit by Mr Mpota from which it is clear that the respondents intended to oppose the main application and that they had already taken steps to do so. Mr Mpota stated that he had filed a notice of appearance to defend at “the Civil Registry” and at the offices of the appellant’s legal representative on 17 August. This was done on behalf of both respondents. He added that when the order of 25 August was served, the respondents’ opposing affidavits to the main application were in the course of preparation and that, in his submission, the order had been “obtained by mistake”.
 Further affidavits were filed by both sides before the return date. In his opposing affidavit the appellant averred that the application for rescission was defective as the respondents had not set out the basis of their defence to his claims, that it was not shown that they were not in wilful default and that they had failed to provide security for costs. He also contended that the notice of intention to oppose the application was defective in certain respects and that it was
“not duly filed and not in the court’s file when judgment was
 The notice of intention to oppose was not annexed to any of the affidavits but a copy was handed to us at the hearing. The defects relied upon by the appellant were that the respondents’ attorneys, whose offices were appointed as the address at which process was to be served, did not sign the notice - it was signed only by Mr Mpota himself – and that the notice was defective in that it was applicable only to proceedings by way of action and not to motion proceedings. It is, however, quite clear that the notice in question evinced the obvious intention by the co-operative and Mr Mpota to oppose the main application and the appellant’s legal advisers should have realised this.
 There was some difference of opinion between the appellant, who appeared in person in this Court, and the respondents’ counsel as to whether or not the notice of opposition was in the High Court file at the relevant time. Fortunately we do not have to resolve this dispute as the appellant informed us that his copy of the notice was handed to the learned judge by counsel who appeared for him at the hearing of the main application. Given this fact it is surprising that Mofolo AJ granted the application without at least affording the respondents the opportunity of being heard. It is moreover disturbing, to say the least, that the appellant’s legal representatives proceeded to set the matter down for an ex parte hearing, despite the alleged defects, when they should have been well aware that the respondents had the intention of opposing the application. In my view their conduct is to be deplored.
 It would seem that due to ill-health the respondents’ counsel was unable to appear on the return day of the rule and presumably the matter was postponed and the rule extended. Subsequently, and on 5 October 2009, the parties arrived at a settlement of one of the appellants’ prayers (prayer (f)) in the main application and the deed of settlement, signed by the appellant and by the respondents’ counsel, was filed with the registrar. This reads:
“TO: THE REGISTRAR OF THE HIGH COURT
KINDLY TAKE NOTICE THAT On this 5th day of October 2009 both Counsel reached settlement as follows:-
In the light of prayer (f) in the main application, applicant received a cheque from Respondents, cheque number 008296 in the amount of M2,651.35.
It is further agreed that the rest of the prayers in the main application will be determined by this Honourable Court if the rescission application is successful.
Parties hereby ask that the aforementioned agreement be incorporated as an order of this Honourable Court.”
 It is obvious that the rescission application had to be dealt with by the Court before the main application and that if it was dismissed that would be the end of the matter. Not only was this agreed to by the parties in clause 2 of the settlement agreement but it also follows as a matter of logic. What is more there was a rule in operation, part of which operated as an interim interdict, and this could not simply be left in the air.
 The rescission application was heard by Mofolo AJ on 26 October and we were informed from the bar that the merits of the main application were also canvassed in argument at the same hearing. The nature of the respondents’ defence to the main application was disclosed in their replying affidavit in the rescission application, a course which was evidently adopted in response to one of the appellant’s contentions (mentioned in para  above) that the rescission application was defective. The learned judge delivered his judgment on 9th December 2009, in which he inexplicably arrived at the following conclusions: first, that in terms of the settlement agreement of 5 October the parties had settled the “major issue” in the main application; and second, that the parties had themselves mutually rescinded the judgment of 24 August. In my view the learned judge erred in respect of both of the aforesaid findings. In terms of the settlement agreement the parties resolved only one of six prayers (apart from costs) in the notice of motion. Prayer (f) does not seem to be the major issue in the main application and, in any event, the parties expressly agreed that the remaining prayers in the main application would be determined by the Court if the rescission application succeeded. Nor did the parties mutually rescind the judgment of 24 August. On the contrary the question of rescission was the one issue that had to be decided by the Court on 26 October. Furthermore the parties could not themselves rescind an order of the Court. Rescission could only be effected by the Court which, in fact, did not occur. What the learned judge did, however, was to dismiss the main application, with no order as to costs.
 There was no justification for the order made by the learned judge. Apart from all other factors which have been mentioned above, the main application was not even ripe for hearing. The respondents, in setting out the nature of their defence in the rescission application, may have done so in outline and only with sufficient detail to show that they had a bona fide defence. Should the rescission application succeed (which, as I shall indicate later, is the result that should follow) the respondents will have the right to file affidavits in response to all of the appellant’s allegations in the main application and the appellant would then be entitled to file a replying affidavit.
 The matter that was essentially argued before this Court was whether the rescission application should succeed. In this regard the appellant contended that the application for rescission had been brought under rule 27 (6) of the High Court Rules, and that the respondents had failed to comply with the said rule. The appellant also persisted in the contention that the respondents had not served or filed a notice opposing the application, as the notice served on his attorneys was defective.
 I have no doubt that rule 45, and not rule 27 (6), is applicable to the present application for rescission. On the face of it rule 27 applies only to actions and not to proceedings by way of applications but this is a point that I do not have to decide. If it is assumed that the aforesaid rule applies to motion proceedings, judgment may be granted against a defendant without notice to him only if he is in default of entry of appearance to defend. In this matter the respondents had given notice of their intention to defend and, even if it was technically flawed, the appellant was not entitled to regard it as non-existent. His remedy was to apply for it to be set aside as an irregular or improper proceeding or step without taking any further step in the litigation (see Theron v Coetzee 1970 (4) SA 37 (T) at 38 H). This the appellant did not do.
 The respondents brought their application for rescission in terms of rule 45. They were correct in doing so on two grounds. The first is that the order or judgment was erroneously sought for the reasons already given. The second is that it was erroneously granted by Mofolo AJ in the absence of the respondents. The learned judge obviously disregarded the respondents’ clear intention to oppose the main application. Furthermore, while under rule 27 (6) an applicant for rescission must satisfy the court that his default was not wilful and that he has a bona fide defence, this is not a requirement under rule 45
(see Rajah v Monese and Another (2000-2004) LAC 736 at 741 B-C) It follows that if the court holds that an order or judgment was erroneously sought or granted in the absence of the respondent the order should, without further enquiry, be rescinded (see Tshabalala and Another v Peer 1979 (4) SA 27 (T) at 30 D-E and Topol and Others v LS Group Management Services (Pty) Ltd 1988 (1) SA 639 (W) at 650 D-J). In the circumstances the Court a quo should have granted the rescission application and it erred in not doing so.
 Furthermore, and for the reasons already given, the learned judge erred in dismissing the main application. To this extent the appeal succeeds. It is necessary for the main application to be argued de novo in the High Court after the parties have filed their affidavits on the merits. As Mofolo AJ has already made an order dismissing the main application, it is in the interests of justice that the application should be heard by some other member of the High Court. The parties are agreed that there should be no order as to the costs of the rescission application or of the appeal. Such costs order will indeed be appropriate in the circumstances.
 The respondents’ notice of intention to defend contains sufficient detail and all the essential averments. Any defects in the said notice should therefore be condoned. It is in the interests of justice that such an order should be made, thus entitling the parties to file their further affidavits forthwith with a view to bringing the litigation to a speedy conclusion.
 The following order is therefore made:
The order of the High Court pursuant to the judgment delivered on 9 December 2009 is set aside and is replaced with the following:
“(i) Paragraphs (a), (b) and (c) of the rule nisi granted on 28
August 2009 under the heading Interim Court Order are
confirmed and the order made on 24 August 2009 is
(ii) For the rest the rule is discharged with no order as to
All defects in the respondents’ “notice of appearance to defend”, dated 17 August 2009, are hereby condoned.
The main application is remitted to the High Court for an eventual hearing before a judge other than Mofolo AJ.
The respondents are to file their opposing affidavits in the main application within 14 days of date of this judgment and the appellant his replying affidavits within 10 days thereafter.
There will be no order as to the costs of the appeal.
L S MELUNSKY
Justice of Appeal
I agree ________________________
J W SMALBERGER
Justice of Appeal
I agree I G FARLAM
Justice of Appeal
For the Appellant : In person
For the respondents : Adv. N. Nku