Mochaba v Tikiso (CIV/APN/277/2004)

Case No: 
Media Neutral Citation: 
[2004] LSHC 111
Judgment Date: 
15 September, 2004




In the matter between:-





Delivered by the Honourable Mrs Justice A.M. Hlajoane on 15th September. 2004.

This is an Application in which the Applicant is asking this Court that the Judgment by the Magistrate in CC1095/2003 be made final on the ground that the Respondent failed to comply with the provisions of Rule 52(1)(a) (b) and (c) of the High Court Rules. He is also asking the Court to interpret Rule 52(1)(d) in his favour.

A brief history of this case has been that the Applicant obtained Judgment by default at the magistrate's Court. The Respondent sought to have that Judgment rescinded, but the Application for rescission was dismissed with costs. The Respondent then appealed to this Court


against that decision by the magistrate refusing the rescission.

The Respondent has raised some points in limine in this case which I dismissed and promised that my reasons would form part of the Judgment in this case. I then ordered that the Appeal from the magistrate be brought before me for perusal as I felt that I would not have done any justice to this Application if I were to decide on it without having glanced at the papers filed in CIV/A/1/04.

When the Appeal was finally put before me, I learned that from the Magistrate's Court record the order dismissing the rescission Application was made on the 17th October, 2003. The Appeal itself was noted on the 27th October, 2003 and served on the Respondent on the 30th October, 2003.

In terms of Rule 52(1)(a) of the High Court Rules 1980,

Appellant may within four weeks after noting of the Appeal apply to the Registrar for a date of hearing, but that has not been the case in that Appeal. Where Appellant fails to act the Respondent also may at any time before expiration of two months from the date of the noting of appeal set the appeal for hearing with notice to the Appellant. This also has not been the case.

Rule 52(d) further shows that if neither party applies for a date of hearing as in (a) and (c) above, the appeal shall (my own emphasis) be deemed to have lapsed. This Rule further indicates that "unless the Court on Application by the Appellant and on good reasons shown shall otherwise order".

The Appellant only applied to the Registrar for a date of hearing in terms of Rule 52(1)(a) on the 11th February, 2004. Even without making proper calculations, from the 27th October 2003 to 11th February 2004 can never be within four weeks or two months. Which therefore means that the appeal had lapsed. Appellant did not even bother to apply to Court in compliance with the provisions of Rule 52(d) to have the appeal reinstated.

As my brother Ramodibedi J (as he then was) said in CIV/APN/6/96 Moqhali v Lephole and Others that,

"a party cannot be allowed to escape the consequences of the Rules

of Court by simply bolting to the High Court as it were."

The Rules of Court were meant to ensure that frivolous applications for

rescission of default judgments are not permitted to delay execution of

lawfully obtained judgments to the prejudice of the successful litigants.

The Applicant in this case has asked the Court that the Judgment by the Magistrate be made final, and indeed where an appeal has been


noted but such appeal has lapsed, the default judgment by the Magistrate Court becomes final. In interpreting Rule 52(d) the Court finds that the Respondent failed to make good use of the provisions of this Rule by applying to have the appeal reinstated as it has lapsed. The Rule is therefore interpreted in favour of the Applicant.

The Application thus succeeds with costs.


For Applicant: Ms Mochaba in Person

For Respondent: Mr Nteso