Ntsalla v Moiketsi and Others (CIV/APN/323/2002 CIV/T/475/93)

Case No: 
Media Neutral Citation: 
[2003] LSHC 94
Judgment Date: 
25 August, 2003





In the matter between:


LENOBELO MOIKETSI 1st Respondent/Plaintiff

T. MAULAKENG & CO. 2nd Respondent

DEPUTY SHERIFF 3rd Respondent

For the Applicant : Mr. T. Mahlakeng

For the Respondents : Mr. Nteso


Delivered by the Honourable Mr. Justice T. Monapathi on the 25th day of August 2003

This is an application, on notice of motion, for rescission of judgment that was accompanied by one of stay of execution as it is usually done. It was filed as recently as the 22nd January 2002. I say this considering that the judgment sought to be rescinded was delivered as long ago as the 6th August 1998. The application for rescission will convenietly be called the "main application".


This application has got a chequered history. One of the biggest surprises is to be found on page 3 (three) of notice of motion where in this prayer 2(a) First Respondent

is asked to provide a dummy file. ".....at its own experience and inform Applicant's Attorneys that it has done so." The best thing would have been for the Applicant to consult attorneys on the other side so that he would not be accused of feigned ignorance. This was more so where Applicant says he searched for the Court file because he was only in possession of the writ of execution (Annexure "A") It nevertheless goes to a great extent indeed to indicate how Counsel can be frivolous and abuse process of Court. as in this instance, by seeking a non-relief in effect. This should however impact on my order for costs The less said about this aspect the better.

The short history of this application as after the judgment of the 22nd January 2002 and after the interim order, is that the main application was confirmed on the 18th February 2002. This gave rise to another application (the second application) by the Respondent/Plaintiff which sought to re-open the main application for the purpose of allowing the Respondent/Plaintiff to file his answering affidavit. This second application was allowed by default of appearance of Counsel on the 6th June 2003 by Guni J. Consequently as matter stood the main application stood unconfirmed and pending as it is now.

I am sure that following the order of the 6th June 2003 by Guni J, almost all those interlocutor)' applications were disposed of resulting in the Court thus allowing Mr.


Mahlakeng in competently file answering affidavit, which he did. The affidavit is dated the 2nd day of July 2003 and it was served on the Applicant on the same date although it was filed in Court only on the 8th August 2003.

Indeed it appears borne out by the minutes in the file cover that Guni J made the order in the second application in the absence of Counsel for the present Applicant but what is important to me is that this answering affidavit by Mr. Mahlakeng remains a regular document which has not been set aside. While admitting receipt of this document Mr. Nteso cannot explain why he did not reply except that he now says he is in possession of a certain letter from Mr. Monyako. In the letter Mr Monyako denies ever representing this Applicant who was Defendant.

The significance of the letter lies in the fact that the Applicant/Defendant has put a:; a basis lor his relief in the application for rescission that he was absent and could not defend the action because he had never ever been served with summons in this action. Consequently he could not have instructed an attorney to defend him and no attorney (including Mr Monyako) defended him. As shown hereinafter I found this difficult to believe. ( On the contrary I saw this as irrefutable evidence of a serious non-disclosure of material facts. On (this aspect alone the application ought to be dismissed.

I have seen the letter from Mr. Monyako. It is not supported by an affidavit.. I decide to ignore the letter. I can only observe that Mr. Nteso, ironically, was not


prepared to take the risk that Mr. Monyako be subpoenaed to testify in support of the

letter on the penalty of costs de bonis propriis against Counsel (Mr. Nteso). This Court refused to allow for a filing of a replying affidavit in the absence of an explanation why since the 2nd day of July 2003 that step was not taken. Nor was there a formal application for condonation to belatedly file the affidavit. This is surprising when one sees a formidable showing in the answering affidavit that the claim against Applicant cannot have come to his attention for the first time when he received a writ of execution but quite before. On all probabilities he was therefore not telling the truth.

As it is, without a replying affidavit, we have no sufficient or adequate challenge to what Mr. Mahlakeng considered correctly to be a formidable array of facts as shown in his affidavit in paragraph 7 and 8. This paragraph shows or refers to the following: a messenger's return of service; service on the Applicant/Defendant with civil summons; notice of appearance to defend by Applicant/Defendant; Defendant's plea and power of attorney, all which demonstrate beyond doubt that Attorney Monyako had been instructed to defend. In any event I would have taken the Respondent/Plaintiffs version in the circumstances when read together with the inherently improbable story that Applicant was not served with summons.

I am not prepared to go behind what may have caused Mr. Monyako to disappear from the picture after having been instructed by Applicant/Defendant. This investigation became valueless when the Applicant does not admit the minimum namely, that he was


served with summons. For all I care it may have even been sabotage of the highest order or even a reasonable act which caused Mr. Monyako's absence. The brazenness of Mr. Monyako's letter does not merely appear to be an unpleasant surprise but it is something which if followed closely may end up meriting attention of the Law Society.

What is important for me to decide is whether any good reasons for rescission of judgment exist. These are sufficient or good cause; absence of wilful default and prospects of success on a bona fide defence. See Loti Brick v Mphofu and Ors 1995-96 LLR 446. Having dismally failed on all these considerations I found no reasons why the judgment and writ of execution ought to be disturbed at all.

I consider therefore that these applications for rescission and stay of execution are extremely frivolous and are an example of blatant abuse of Court process. The application is therefore dismissed with costs on an Attorney and Client scale, so as to mark my displeasure at the conduct of these proceedings by the Applicant.

T. Monapathi


25th August, 2003