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
KEKETSI NTSETSELANE FIRST RESPONDENT
LEROTHOLI THEKO SECOND RESPONDENT
CORAM: Van den Heever J.A.
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.
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
The order granted ....on the 23rd day of February, 1996 (sic) with costs shall not be rescinded and the matter proceed ordinarily in a proper hearing
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.
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
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
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
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)
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.
L. van den Heever
JUDGE OF APPEAL
I agree: Signed:
JUDGE OF APPEAL
I agree: Signed:
JUDGE OF APPEAL
Delivered this 15th day of October 2000.
For the Appellant: Mr. B.R.M. Masiphole
For the Respondent: Mr. M. Mafantiri