Qholelo v Lesotho National General Insurance Co. Ltd (CIV/APN/261/02 CIV/T/165/2002)

Case No: 
CIV/APN/261/02
Media Neutral Citation: 
[2003] LSHC 40
Judgment Date: 
1 April, 2003

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CIV/APN/261/02

CIV/T/165/2002

IN THE HIGH COURT OF LESOTHO


In the Matter Between:


MOZOENTJANE QHOLELO Applicant

and

LESOTHO NATIONAL GENERAL INSURANCE CO. LTD Respondent


Ruling:


Delivered by the Honourable Mrs Justice A. M. Hlajoane on the 1st day of

April, 2003.


The Applicant is applying for a rescission of an order made by this Court. An amendment was moved before the hearing of the rescission Application, and the amendment was applied for purely for purposes of making the order, "MQ5"attached to the Replying Affidavit, to be in line with the actual order granted by this Court which read 'struck out', not 'struck off. The order sought to be rescinded effectively barred the proceedings in CIV/T/I65/01 wherein the present Applicant sued the Respondent for damages in terms of order No. 26 of 1989, arising out of injuries he sustained when two vehicles collided and one of them. belonging to the present Applicant.


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That trial action had gone up to the stage where the Plaintiff had supplied further particulars as requested by the defendant. But when the Replying Affidavit was so filed on the 29th November, 2002, counsel for the Applicant had already filed a notice of withdrawal as Attorneys and counsel of record respectively on the 28th November, 2002.


According to the Applicant when his counsel so withdrew, it was without notice to him of such withdrawal.


The other argument advanced by the Applicant's counsel was that, the notice of set down had been sent to him by registered post to Mafeteng. The Applicant had appointed the offices of


Messrs T. Mahlakeng & Co,

Lenyora House,

P. O. Box 11951,

Maseru 100.


as the address where he would accept notice and service of all process in this matter. The question by the Applicant was whether the process sent to Mafeteng and not to Mahlakeng & Co was a proper service and valid in law under the circumstances of this case. Also whether the order granted by this Court for non-compliance with Rule 15 (4) of the High Court Rules was properly issued.


The Applicant therefore had approached this Court relying on the provisions of section 45 (1)a that the striking out of his claim be rescinded on the basis that the


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order was erroneously sought and granted in his absence.


Rule 45 (1)(a)


"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 –


  1. an order or judgment erroneously granted in the absence of any party affected thereby; "


The order made by this Court was that plaintiffs claim be struck out for non­compliance with Rule 15 (4) of the High Court Rules which reads,


"Where an Attorney acting for any party ceases so to act he shall (my own emphasis) forthwith notify the Registrar and all parties accordingly.


The notice to the Registrar shall specify the date, when, the parties to whom and the manner in which the notification was sent to all parties, and shall be accompanied by a copy of the notification so sent.


Such notification shall be of the same force and effect as a notice under sub-rule (2). Provided that unless the party for whom the Attorney was acting himself within 3 days notifies all other parties to the proceedings of a new address for service, it shall not. save in so far as the Court otherwise orders, be necessary to serve the documents on him. "


From the reading of that subsection, it is clear that where an attorney withdraws from a case, he must inform his client as well as one of the parties involved. Botes v Botes 1964 (4) SA 295 cited as authority for showing that when service for withdrawal as Attorney of record is effected it must also include the party for whom the Attorney had been acting. In our case the notice of withdrawal was only communicated to the Respondents Attorneys and the Registrar only. The Applicant only came to be aware of the withdrawal by his counsel six months after counsel had withdrawn. The withdrawal was communicated to the Court and the Respondents on


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the 28th November, 2001 and Applicant only came to know of it on the 30th May, 2002. Glegg v Priestley 1985 (3) S. A. 950 is the authority for the proposition that no final order will be made that may prejudice the rights of a person without giving notice to such person.


Also in the case of Horitzaner v Horitzaner 1968 (4) S. A. 376, the Court showed its reluctance in exercising its discretion in Applicant's favour where it had been impossible for an Attorney to notify his client that he was withdrawn.


In terms of Rule 15 (4) of the High Court Rules, the Applicant ought to have notified the Respondent of a new address for service within three (3) days of the withdrawal. It would not therefore have been possible for the Applicant to have complied with the provisions of that section as he (plaintiff) was not even aware that his counsel had withdrawn as Attorney of record. Precisely because the withdrawal was not communicated to him as required under the said Section.


The Respondent had filed a notice of set down with notice to the Applicant by Registered post. The notice of set down did not specify as to what it was for. Be that as it may, the Applicant had appointed the offices of Mahlakeng & Co as the address where he would accept notice and service of all process in the proceedings, but the set down was sent by registered post to P. O. Box 18, Mafeteng not Mahlakeng & Co at Lenyora House.


The Respondent on the other hand shows that there hasn't been any irregularity here, as the order that was granted had nothing to do with non-compliance with


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request for further particulars. There I quite agree with him. The order was clearly granted for non-compliance with Rule 15 (4). True enough, counsel may have inelegantly worded what he was seeking for from the Court, and the Court may have not contemplated a striking out under the circumstances, but the truth of the matter is that the order as appears on the Court's file clearly without doubt showed that the matter was struck out for non-compliance with Rule 15 (4).


As rightly pointed out by the Respondent, The Rules of Court do not provide for striking out a matter by reason of having failed to comply with the provisions of Rule 15 (4). This clearly was an irregular step. Even assuming that such a step could be taken, there still has to be a formal Application from a party seeking to have the matter contained in the summons to be struck out, Champion v J D. Celliers & Co Ltd 1904 TS 788. This Application to strike out was made from the bar.


Had the Court been aware at the time of the granting of this order of the irregularity concerning service at the wrong address and also failure of notifying the Applicant personally about the withdrawal by his counsel, it would have been loathe to grant the order as it did. On the facts surrounding the granting of this order, the Court had no jurisdiction to act as it did, thus rendering the whole process a nullity.


The Court finds that the order that was granted by this Court on the 19th December, 2001 was erroneously granted. The Application for rescission of that order therefore succeeds with costs.


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  1. M. HLAJOANE

JUDGE


For Applicant: Mr Mda

For Respondent: Mr P. J. Loubser