Minister of Local Government and Chieftainship Affairs V Moseme Makhele (CIV/APN/143/2021) [2023] LSHC 173 (31 October 2023)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CIV/APN/143/2021 In the matter between: MINISTER OF LOCAL GOVERNMENT 1st APPLICANT AND CHIEFTAINSHIP AFFAIRS ATTORNEY - GENERAL 2nd APPLICANT and MOSEME MAKHELE RESPONDENT Neutral citation : Minister of Local Government and Chieftainship Affairs and Another v Moseme Makhele [2021] LSHC 173 (31 November 2023) Page | 1 CORAM : KHABO J., HEARD : 17/10/2022 DELIVERED : 31/10/2023 SUMMARY Civil practice and procedure - Rescission application brought in terms of Rule 45 (1) (a) of the Rules of the High Court, 1980 in circumstances where Applicants had only filed an intention to oppose - and failed to oppose both the default judgment and contempt proceedings - In motivating the rescission application, Applicants argued that the order was “erroneously sought or erroneously granted” in that the Respondent knew at the time that he sought the default judgment that the position he previously held had already been filled and that had the court been aware of this, it would not have granted the default judgment - Secondly, that the Minister of Local Government and Chieftainship Affairs cannot be held contemptuous when he had not been personally served with the contempt order. Page | 2 Court finds no error in both the seeking and the grant of the two orders by this court. ANNOTATIONS Statutes and subsidiary legislation Lesotho High Court Rules, 1980 South Africa Uniform Rules of the High Court Cases cited Lesotho Leen v First National Bank (Pty) C of A (CIV) 16 A of 2016 `Mampeli Marabe v The Maseru Magistrate Court and 7 Others Constitutional Case No. 18/2020 Molapo Mothunts’ane and Others v Kopano Selomo and Another C of A (CIV) 16/1992 Page | 3 Namibia SOS Kinderdorf International v Effie Lentin Architects 1993 (2) SA 481 (NM) South Africa Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466 Benwick v Botha (35217/2019) [2023] ZAGPJHC 305 (8 March 2023) Katritsitis v De Macedo Freedom Stationery (Pty) Ltd v Hassam 2019 (4) SA 459 (SCA) Kgomo v Standard Bank of South Africa 2016(2) SA 184 (GP) Lodhi 2 Properties Investments CC and Another v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA) Mutebwa v Mutebwa and Another 2001 (2) SA 193 Nyingwa v Moolman 1993 (2) SA 508 Sefiri and Another v Mhlanga and Others (59307/21) [2022] ZAGPJHC 260 (4 May 2022) Valditime (Pty) Ltd and Another v ABSA Bank Ltd Case No. 2021/39886 Van der Merve v Bonaero Park (EDMS) Bpk 1988 (1) SA 697 (T) Zuma v Secretary of the Judicial Service Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector and Organs of State (2021) ZACC 28 Page | 4 Literature Herbstein and Van Winsen - The Civil Practice of the Supreme Court of South Africa Juta & Co., Ltd, 4th ed., 1997 Page | 5 JUDGMENT KHABO J., Introduction [1] This is an application for the rescission of two orders granted by this court against the Applicants brought in terms of Rule 45 (1) (a) of the High Court Rules, 19801 (the Rules) on the basis that the orders were ‘erroneously sought and erroneously granted.” These orders came about as a result of Applicants’ failure to oppose Respondent’s claim culminating in the grant of a default judgment. [2] Applicants having failed to comply with the order, the Respondent lodged contempt proceedings which were also not opposed by the Applicants and were granted as prayed. Applicants are before this court to have both the default 1 Legal Notice No. 9 of 1980 Page | 6 judgment obtained on 08th September, 2021 and a show cause order in respect of the contempt application granted on 14th February, 2022 rescinded and set aside. The application is opposed. Relevant facts [3] Circumstances surrounding the dispute are that the Respondent was engaged and served the Government of Lesotho (the Government) as a District Administrator of the District of Leribe on a fixed - term contract for a period of three (3) years commencing 1st December, 2017 and ending 1st December, 2020. On 19th October, 2020, the then Principal Secretary of the Ministry of Local Government and Chieftainship Affairs (the Ministry), wrote2 to him reminding him of the imminent expiry of his contract of employment in December. 2 “Annexure B” to now Respondent’s notice of motion Page | 7 [4] Respondent replied thereto on 23rd October, 20203 expressing a desire to have his contract renewed for a further period of three years, which was declined. Among reasons advanced for the refusal was that another District Administrator was already being transferred to Leribe to assume the position upon the expiration of his contract. On 05th May, 2021, five months after the expiration of his contract, the Respondent instituted proceedings against the 1st Applicant wherein he claimed, inter alia, for the renewal of his employment contract by the Ministry. [5] In reaction, Applicants filed an intention to oppose which was served on the Respondent on 07th June, 2021. They, however, failed to file an answering affidavit within the prescribed period of fourteen (14) days in terms of Rule 8 (10). The Respondent subsequently applied and was granted a default judgment on 08th September, 2021 wherein the 1st Applicant was ordered to renew Respondent’s contract of employment for a further three (3) years as prayed by the Respondent. The Order was duly 3 “Annexure C” to now Respondent’s notice of motion Page | 8 served on both the Ministry and the Attorney - General’s Chambers4 and bears date stamps of both. [6] Counsel for the Respondent wrote on 15th October, 2021 to the Principal Secretary of the Ministry5 seeking compliance with this order for his client’s reinstatement, pointing out further that if the order is not complied with, he would be left with no option but to lodge contempt proceedings. The Principal Secretary of the Ministry responded6 to this letter indicating that they are not able to effect the order as there is no position to reinstate the Respondent to because the position he held had already been filled. [7] Dissatisfied with this response, he served Applicants with contempt proceedings on 18th September, 2021 in which he prayed that the Minister of Local Government and Chieftainship Affairs, 1st Applicant herein (the Minister) be ordered to comply with the default judgment of 08th September, 2021, failing which he be committed to prison for 4 P. 25 of the paginated record 5 ‘LR 1’ to Applicants’ notice of motion 6 ‘LR 2’ to Applicants’ notice of motion Page | 9 contempt of court. Respondent’s Counsel served the Applicants with a notice of set - down for the determination of the contempt application on 15th December, 2021 with the hearing scheduled for 14th February, 2022. The contempt application was also not answered. [8] The hearing of the contempt application went ahead, but despite having been served with the notice of set - down Applicants’ Counsel failed to attend the otherwise scheduled hearing on 14th February, 2022. Respondent’s Counsel moved the contempt application wherein the Minister was given fourteen (14) days within which to purge the contempt or otherwise face imprisonment. Applicants’ reaction was to file the current rescission application, and further apply for stay of the order to purge which was granted as prayed. The rescission application [9] Applicants aver that failure to file an answering affidavit was as a result of a dereliction of duty on the part of Counsel who Page | 10 had been instructed to oppose the matter but only filed an intention to oppose culminating in Applicants’ failure to oppose both the main application and the contempt proceedings. [10] They are herein seeking the rescission of the two orders of this court, namely, the default judgment and the order compelling the Minister to comply with the judgment on the basis that they were both erroneously sought in terms of Rule 45 (1) (a) of the High Court Rules, 1980 which provides that: 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 - An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby. The error may arise either in the process of seeking the judgment on the part of an applicant for a default judgment or Page | 11 in the process of the granting of the default judgment by the court. [11] On the meaning of an order erroneously granted, the court stated in Bakoven Ltd v GJ Howes (Pty) Ltd 7 that: An order is ‘erroneously granted’ when the Court commits an ‘error’ in the sense of a mistake in a matter of law appearing on the proceedings … (The Shorter Oxford Dictionary). [12] Expounding further on the concept, the court held in Nyingwa v Moolman8 that an order or judgment is erroneously sought or granted if at the time it was issued there existed a fact which had the Judge been aware of, he or she would not have granted it. The judgment was cited with approval in Leen v First National Bank (Pty)9 and restated in Zuma v Secretary of the Judicial Service Commission of Inquiry into allegations of State Capture, Corruption and Fraud in the 71992 (2) SA 466 at para. 471E to H 8 1993 (2) SA 508 at 510 9 C of A (CIV) 16 A of 2016 at para 28, page 17 Page | 12 Public Sector and Organs of State.10 Put differently, the order or judgment “would be erroneously granted if there were facts which existed which would have induced the court not to grant the order or judgment.”11 [13] In order to succeed in an application for rescission under Rule 45 (1) (a) the court stated in Mutebwa v Mutebwa and Another12 that the applicant must satisfy three requirements. Firstly, that the default judgment must have been erroneously sought or granted; secondly, that such judgment must have been granted in the absence of the applicant and; lastly, that applicant’s rights or interests must be affected by the judgment. The court was remarking on Rule (42 (1) (a) of the Uniform Rules of Court (South Africa)13 which is similar to Rule 45 (1) (a) as aforestated. 10(2021) ZACC 28 at para 62 11Benwick v Botha (35217/2019) [2023] ZAGPJHC 305 (8 March 2023) at para. 41 12 2001 (2) SA 193 at p. 198 F also Valditime (Pty) Ltd and Another v ABSA Bank Ltd Case No. 2021/39886 at pp. 4 - 5 13 Act No. 59 of 1959 Page | 13 [14] The court having considered the criterion set above, it has a discretion whether or not to rescind the judgment. The discretion must be influenced by considerations of fairness and justice, having regard to all the facts and circumstances of the particular case. [15] The second and third elements of the Rule having been satisfied, namely, that the orders were granted in the absence of the Applicants, and that their interests are thereby affected as interested parties, what remains to be determined is whether the default judgment and the order to compel the Minister to comply was “erroneously sought or granted.” An applicant who seeks to set aside an order or judgment in terms of Rule 42 (1) (a) (a Rule similar to Rule 45 (1) (a)) is not required to establish ‘good cause’14 as required under the common law. [16] The court is only enjoined to establish whether the order or judgment was erroneously sought or granted in the absence of 14 Herbstein and Van Winsen - The Civil Practice of the Supreme Court of South Africa Juta & Co., Ltd, 4th ed., 1997 at p. 697 Page | 14 the other party affected by it, and to decide whether to grant the rescission or not. The purpose of Rule 45 (1) (a) is to correct expeditiously an obviously wrong judgment or order.15 What constitutes an error for purposes of Rule 45 (1) (a) [17] In explaining the purported “errors,” Applicants’ Counsel advances a two - pronged argument, firstly, that when the Respondent sought the default judgment there was no vacant position, a factor she says was not disclosed to the Honourable Judge who granted the default judgment, and that had he been aware that the position had already been filled when the Respondent approached him for a default judgment, he would not have granted the order. [18] Secondly, that the order to compel the Minister to comply had not been served on him personally, when he had been cited as such, and he can, therefore, not be held to be contemptuous. 15 Van der Merve v Bonaero Park (EDMS) Bpk 1988 (1) SA 697 (T) at 702 H, referring to a similar Rule in South Africa cited with approval in Valditime supra at pp. 4 - 5 Page | 15 She submitted that had the court been seized with the above information, it would not have granted the two orders, hence, they were “erroneously sought and granted” as anticipated by Rule 45 (1) (a). Analysis [19] Default judgment is a procedural relief which is granted because the other party failed to oppose a matter when he or she knew about it. It is not granted because the other party has no defence, but that a party failed to defend a matter he or she was aware of. [20] The court held to this end in Freedom Stationery (Pty) Ltd v Hassam16 that: When an affected party invokes Rule 42 (1) (a) (our Rule 45 (1) (a) the question is whether the party that obtained the order was 16 2019 (4) SA 459 (SCA) Page | 16 procedurally entitled thereto. If so, the order could not be said to have been erroneously granted in the absence of the affected party. An applicant or plaintiff would be procedurally entitled to an order when all affected parties were adequately notified of the relief that may be granted in their absence … [T]he failure of an affected litigant to take steps to protect his interests by joining the fray ought to count against him.17 [21] In this court’s considered opinion, the Respondent was ‘procedurally entitled’ to a default judgment because the Applicants failed to file an answering affidavit and to attend the hearing they knew was proceeding. [22] A default judgment is granted for failure to attend a court hearing. The court held in Keratitis v De Macedo18 that the concept of a default judgment is not confined to failure to file the necessary documents required by the Rules in opposition to the claim but to a failure to attend court during the hearing of a matter. There being no answer to Respondent’s claim, he 17 Ibid at para 25 18 1966 (1) SA 613 (A) at 618 B Page | 17 was entitled to the order of default sought as the matter stood uncontested. [23] Applicants must point to an error in the proceedings. According to Kgomo v Standard Bank of South Africa,19 the Rule [similar to our 45 (1) (a)] caters for a mistake in the proceedings which may either appear in the record of proceedings or subsequently become apparent from the information made available in an application for rescission of judgment. [24] Applicants seem to rely on their defence in alleging an “error.” In a case where an applicant has resorted to a relief under Rule 45 (1) (a), whether one has a good case on the merits or not is irrelevant as long as he or she failed to attend a hearing when he or she was aware and is not able to point to any error in the proceedings. The court held in Lodhi 2 Properties Investments CC and Another v Bondev Developments (Pty) Ltd20 that where a party has been notified of a claim and 192016(2) SA 184 (GP) 20 2007 (6) SA 87 (SCA) at para 27 Page | 18 decides not to oppose it, “the existence or non - existence of a defence on the merits is an irrelevant consideration and, if subsequently disclosed, cannot transform a validly obtained judgment into an erroneous judgment.” [25] In Kgomo (supra), the court held that a judgment cannot be said to have been granted erroneously in light of a subsequently disclosed defence which was not known or raised at the time the default judgment was sought and granted. When my brother Mokhesi J., granted the default judgment on 08th September, 2021, he did not know that Respondent’s position had been filled, and neither was it brought to his attention. He cannot, therefore, be said to have erroneously granted the order. [26] Moreover, Applicants do not disclose when the position was filled. Coming to the Respondent, if one were to take Applicants’ argument that he was not candid with the court by not disclosing that the position had been filled when he lodged his claim, it does not follow that if a position is no longer Page | 19 vacant, an aggrieved party may not challenge the legality or otherwise of his or her termination of employment. There appears to be no procedural error that in the court’s view stood in the way of the grant of the default judgment. As aforementioned, considerations on which Applicants rely are more in the nature of putting up a defence, namely, that the position had already been filled when the order was granted. Applicants might have prospects of success on the merits, but it is irrelevant for purposes of Rule 45 (1) (a). [27] Applicants should have filed papers to put up their defence. They denied themselves an opportunity to do so in failing to attend an otherwise scheduled hearing. The judgment was granted after both the Ministry and the Attorney - General’s Chambers had been served with the application. They were aware. [28] The court explained in Zuma supra where an order had been granted in his absence that the word “absence” in Rule 42 (1) (a) (South Africa) our 45 (1) (a) exists to protect litigants whose Page | 20 presence was precluded. Not those whose absence was elected. It, therefore, held that given that Mr Zuma was given notice of the case against him, as well as sufficient opportunities to participate in the matter, but nonetheless elected not to participate in the matter, but nonetheless elected not to participate, the court’s finding was that a litigant’s strategic election not to participate does not constitute “absence” for purposes of Rule 42 (1) (a) (our Rule 45 (1) (a).) [29] “The court will normally exercise its discretion in favour of an applicant who through no fault of his [or her] own, was not afforded an opportunity to oppose the order granted against him [or her] and who, having ascertained that such an order has been granted, takes expeditious steps to have the position rectified. If the applicant is the author of his own problems, the court is not likely to order rescission.”21 [30] The 1st Applicant became aware of the default judgment on 28th September, 2021 when the 2nd Applicant was served on 21 Herbstein supra at p.698 Page | 21 01st October, 202122 but delayed before they could launch an application for rescission until contempt proceedings were instituted. It is their fault that the claim was not attended to. It might have been the doings of one irresponsible officer, but unfortunately, it has had serious repercussions. Alleged error as to service [31] Another leg of Applicants’ argument, as aforementioned, is that the order to compel the Minister to comply with the default judgment was erroneously granted as the Minister had not been served with it personally when the orders sought were instituted against him personally. It is trite that a contempt application or order must have been served on the person who is alleged to be in contempt.23 It is the court’s considered view that the Minister was cited in a nominal and not personal capacity, and as long as the processes are served on his office, there is proper service. We must draw a distinction here 22 P. 25 of the paginated record 23 Sefiri and Another v Mhlanga and Others (59307/21) [2022] ZAGPJHC 260 (4 May 2022) at para 17 Page | 22 between a person cited in her personal as opposed to an official one. [32] Rule 45 (1) (a) is a procedural step aimed at correcting an obviously wrong judgment or order, and as far as this court is concerned, Applicants have not been able to proof any “error” as contemplated by Rule 45 (1) (a). [33] Applicants’ Counsel’s alleged remissness was not limited to a single occurrence, but to a litany of them, namely, failure to answer in terms of Rule 8 (12); failure to file a rescission application immediately after the grant of the default judgment; and failure to attend contempt of court proceedings. Applicants waited until contempt proceedings were lodged before they could institute an application for rescission. [34] “[W]hile courts are slow to penalise a litigant for his attorney’s inept conduct of litigation, there comes a point where there is no alternative but to make the client bear the consequences of the Page | 23 negligence of his attorneys.”24 The Court held in Molapo Mothunts’ane and Others v Kopano Selomo and Another25 that “authorities are clear that the Court will not grant a litigant the right to pursue his case if he flagrantly disregards the provisions of the rules …” [35 A default judgment is essentially triggered by non - compliance with the Rules. Non - compliance with the Rules of court undermines its “authority, dignity and effectiveness.” The court remarked in the Namibian case of SOS Kinderdorf International v Effie Lentin Architects26 that “ … Rules of Court constitute the procedural machinery of the Court and they are intended to expedite the business of the Courts.” Rules should, therefore, be respected. 24 Valditime (Pty) Ltd (supra) at p.10 25 C of A (CIV) 16/1992 at p.7 26 1993 (2) SA 481 (NM) Page | 24 ORDER In the circumstances, l make the following order: The rescission application is dismissed with costs. F. M. KHABO JUDGE For the Applicants : Adv., L. Tau For the Respondent : Adv., M. G. Makara Page | 25