IN THE HIGH COURT OF LESOTHO In the Application of :
INSTITUTE OF DEVELOPMENT MANAGEMENT Applicant
BANGANI B. TSOTSI Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice M.L. Lehohla on the 17th day of May, 1993
On 7th May, 1993 this Court discharged with costs an application moved by the applicant for :
rescission of a judgment delivered on 17th
leave to defend the action in CIV\T\93\91.
stay of the execution in the above trial.
In seeking to defend the action in CIV\T\93\91 the application tends to be indifferent to the fact that the action in that trial was dismissed in terms of a judgment dated 14th August, 1992. The Court of Appeal confirmed that judgment. To this extent therefore the application is both specious and misconceived.
It is misconceived because it ignores the vital effect of the statement contained at page 5 of the judgment of 14th August, 1992 that
"It is the effect and purpose of Rule 34 that once this rule has been pleaded successfully the party against whom the ruling has been granted will not be entitled to appear and cross-examine witnesses. See page 416 of Hebstein and van Winsen above".
The above statement paraphrased from a statement referred to in Hebstein and van Winsen is extracted from Langley vs Williams 1907 TS 197 according to a reference in the footnote of the Learned Authors' book.
Thus this disposes of the applicant's claim that the matter relating to proof of damages by the respondent was set down without reference to the former. In any case Dr. Tsotsi in his well prepared set of heads of argument at paragraph 8 argued successfully in showing that the applicant "states (wrongly) that
its attorneys were not served with a Notice of Set Down ".
In supporting his argument he indicated that after the initial Notice of Set Down and subsequent postponement which led to the judgment of 14th August, 1992 being read in open court the applicant's attorney left, no doubt feeling he was no longer part of the proceedings as the authority in Van Winsen above showed that his further participation would serve no purpose as that authority indicates that he would not be entitled to cross-
examine the plaintiff and his witnesses.
The applicant on this occasion relies on the affidavit of one Tefetso Selebalo who is its Acting Director. His affidavit seeks to highlight the effect of ill blood between the Regional Director and Country Director on the running of the applicant and bemoans the fact that it is due to this animosity between these Directors that resulted in the applicant incurring costs and being faced with execution of a judgment granted for the plaintiff\respondent in the applicant's absence.
On this aspect of the matter I would view with great favour the respondent's attorney's submission that the internal squabbles between branches of the applicant described in paragraph 4.4 are irrelevant and vexatious and ought to be struck out in terms of Rule 29(5).
It is common cause that Selebalo in bringing this application relies on Rule 45(1) in the averment that the applicant is entitled to have the previous judgment rescinded. See Founding Affidavit at 4.7.
That rule says :
"The Court may in addition to any other powers it may have mero motu or upon the application of any party affected, rescind or vary:-
(a) an order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby,
an order or judgment in which there is an
ambiguity or a patent error or omission, but
only to the extent of such ambiguity, error
an order or judgment granted as a result of a
mistake common to the parties".
This Rule is identical with Rule 42(1) of the South African Rules.
Dr. Tsotsi submitted that none of the factors set out above applies therefore no case for rescission has been made by the applicant.
He accordingly referred the Court to p.468 of Hebstein and van Winsen 3rd Ed. where it is stated :-
"The rule sets out the exceptions to the general principle that a final order, correctly expressing the true decision of the Court, cannot be altered by that Court".
See Brits and Others vs Engelbrecht and Others 1907 TS at 880-1.
In elaborating on the above statement Dr. Tsotsi invited the Court to Firestone South Africa(Pty)Ltd vs Genticuro A.G. 1977(4) SA 298 at 306 where Trollip J.A. in illustrating the fact that Rule 45(1) constitutes an exception to the general rule said :-
"The general principle now well established in our law, is that once a Court has duly pronounced a final judgment or order, it has itself no authority to
correct, alter or supplement it. The reason is that it thereupon becomes functus officio; its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased".
At page 307 Trollip J.A. further describes the exceptions referred to above as follows :
"The Court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided that it does not thereby alter the sense and substance of the judgment or order".
There cannot be any ambiguity, obscurity or omission in the express statement of the judgment delivered on 14th August, 1992 that
"it is the effect and purpose of Rule 34 that once this rule has been pleaded successfully, the party against whom the ruling has been granted will not be entitled to appear and cross-examine witnesses".
See p.5 of that judgment read with Ex-Parte Willis and Willis 1947(4) SA 740 at 742-3.
It was further submitted on behalf of the respondent that even if it is correct that the Court relied on wrong authority in arriving at its decision, or that it is apparent that the applicant had a bona fide defence, or that respondent did not tender his services to the applicant after termination of his services, all these could not entitle the Court to alter its decision as it would be functus officio in any case apart from the fact that the respondent denies these allegations including the averment by the applicant that its attorneys were not served
6 with a Notice of Set Down.
In this regard Dr. Tsotsi relying on Postmasburg Motors (EDMS) BPK vs Peens en Andere 1970(2) SA 35 extracted for consideration the following words :
"A Court which issues an order may be approached to clear up an ambiguity therein but no evidence is admissible to contradict, alter or add to the contents of the Court's order".
Mr. Nathane for the applicant held in question the propriety of the respondent waiting for almost two months without a stir and thereafter suddenly anticipating the return date, and termed this abuse of Rule 8(18) and submitted that this goes contrary to the principle of urgency. Unfortunately he did not state the authority he relied on for this somewhat novel proposition.
Rule 8(18) as I read it does not circumscribe the period during which a respondent is entitled to anticipate a rule granted ex-parte as long as such anticipation is embarked on with a minimum 48 hours' notice to the other side. Without any reliable authority to the contrary I don't think that a charge would ever be well conceived that a respondent has exhausted the maximum period within which he can anticipate the rule. It seems to me that the respondent has this right to anticipate as long as
a rule obtained ex-parte against him subsists.
In an attempt to illustrate that the applicant is not entitled to behave as if butter would not melt in its mouth Dr Tsotsi referred the Court to Rule 8(10) and (11) stipulating the periods within which respective parties are to file their answering and replying affidavits.
Sub-rule (13) stipulates the periods within which an opposed application may be filed and further states that :
" If the applicant fails to apply for such
allocation (of a date by the Registrar) within the appropriate period as stated aforesaid, the respondent may do so immediately upon expiry thereof".
If the defendant's reluctance to take any move in CIV\T\93\91 was something bizarre the same attitude by it in its so-called urgent application now is most bewildering.
In the instant application the respondent filed his answering affidavit on 17th March, 1993.
In terms of Rule 8(11) the replying affidavit should have been filed within 7 days i.e. on 24-3-1993.
This was not done despite request.
On 26-4-93 the respondent tried to awaken the applicant not only to its first failure to reply within 7 days but also to the next and subsequent failure by the applicant to comply with an order compelling compliance therewith by not later than 30th April, 1993.
The move to anticipate was only embarked on when the date proposed by the Registrar for hearing happened to be fairly distant i.e. 15-6-93. Thus the respondent thought differently and decided to utilize his right to have the matter brought to finality quickly before Court. Can it really lie in the applicant's mouth to question the hurry with which the respondent is bringing this matter to Court for hearing regard being had to the fact that the matter was brought on urgent basis by the applicant in the first place? Can good sense allow the applicant to try and take advantage of the respondent's generosity? I think not; for such would be to allow the applicant to abuse the other party's good intention to accommodate it.
Needless to say the replying affidavit was only filed on 6-5-93. This alone knocks the stuffing out of the argument that the matter be allowed to take its course.
Concerning the applicant's argument that the respondent's application to strike out vexatious and argumentative averments does not comply with Rule 29(5) I find that it does not seem to
be well-founded because the application was indeed made in the answering affidavit which was filed within the period allowed and setting out that the averment contained in 4.4 of founding affidavit be struck out. It would be totally uncalled for to require the respondent to make a separate notice of set down for the purpose. See Khoboko vs Khoboko CIV\APN\402\86 at p.5 where reference is made to Munnik J's dictum in Yorkshire Insurance Co. Ltd vs Reuben 1967(2) SA at 265. The learned judge had this to say with regard to forms of notices in interlocutory matters :
"There is to my mind a substantial difference between an application being brought on notice and an application brought on notice of motion. It could never have been intended, when parties are already engaged in litigation and have complied with such formalities as appointing attorneys and giving addresses for the service of documents in the proceedings, (that)the parties would be required to go through all the same formalities again with all the concomitant and unnecessary expense.
I am satisfied that the use of the word "notice" in sub-rule (11) (read 5 and or 21 to Rule 8) as opposed to the "notice of motion" in the . other sub-rules to Rule 6 indicates clearly that interlocutory and other applications incidental to pending proceedings were not intended to be brought by way of formal notice of motion in the same way as applications initiating proceedings".
I am satisfied that the rule requiring application to strike out to be made within 7 days has been complied with.
Parties' respective counsel agree that the application is in terms of Rule 45 "especially sub-paragraph (a)" to put it in Mr.
10 Nathane's words.
Mr. Nathane referred to cases quoted by Dr. Tsotsi and said they referred not to sub-paragraph (a) but (b).
It is amazing that at this stage there should be this nitpicking whereas at the beginning there was no specification by the applicant as to what particular provision of the law was relied on for applying for rescission. The common factor between (a) and (b) is the question of error in the Court's judgment. Both cases referred to do refer to an error.
Another argument advanced on behalf of the applicant was that the respondent didn't render any services or tender any services for which he was entitled to a salary. But evidence was led in this Court and the respondent proved his damages including production of a schedule of attempts he made to mitigate damages. Furthermore in Hazis vs Transvaal and Delagoa Bay Investment Co. Ltd 1939 AD 372 at 388 it is said by Stratford C.J. :
"Both on principle and on precedent the burden of proving that the claimant for damages did not take reasonable steps to mitigate the damage which he actually suffered is upon the one who asserts that those reasonable steps were not taken."
Further, I do not understand how a man who has been unlawfully dismissed and seeks damages instead of re-instatement should be required to tender services to the very employer who
has manifested its attitude that it does not require his
services. In any case the onus is on the applicant to prove that
the respondent failed to tender those services referred
Mr. Nathane submitted that provisions of Rule 34(9) fall short of the requirement that the defendant could not cross-examine the plaintiff's witnesses. But unfortunately he supplied no authority to gainsay what clearly appears in Wilson's case i.e. Wilson vs Die Afrikaanse Pers Publikasies (EDMS) BPK 1971(3) SA 455 at 462 that :
"The striking out of a defendant's defence is an
extremely drastic step which has the consequence that
the action goes forward to trial as an undefended
(underscored for emphasis)
It should be clear therefore that it is not without cause that the authorities regard the striking out of a defendant's defence as an extremely drastic step for the trial proceeds as an undefended matter which is another way of saying plaintiff's witnesses are not cross-examined. If striking out is so serious it stands to reason that dismissal is even more so, for Rule 34(9) says
" failing such compliance, (the
Court) may dismiss the claim or strike out the defence".
The applications for rescission, stay of execution and leave to defend are discharged with costs.
JUDGE 17th May, 1993
For Applicant : Mr. Nathane For Respondent : Dr. Tsotsi