Han v Kim (CIV/APN/494/99 ; CIV/T/258/99) [2000] LSCA 63 (11 July 2000)

Han v Kim (CIV/APN/494/99 ; CIV/T/258/99) [2000] LSCA 63 (11 July 2000)

The court found that a procedural irregularity occurred when the applicant's attorney withdrew without proper notice to the applicant, violating Rule 15(4). This denied the applicant a fair hearing as required by Section 12(8) of the Constitution. The court exercised its discretion to rescind the judgment granted in the applicant's absence, holding that the explanation for default was reasonable and that the merits of the defence should be determined at trial.

Citation
[2000] LSCA 63
Parties
Applicant: Suk Bok Han; Respondent: Sang Jun Kim
Court
Court of Appeal
Jurisdiction
Lesotho
Judgment Date
11 July 2000
Case Number
CIV/APN/494/99 ; CIV/T/258/99
Procedural Posture
Application for Rescission of Judgment / Judgment on Application for Rescission
Outcome
application for rescission granted
Legal Topics
Rescission of Judgment, Procedural Irregularity, Right to Fair Hearing, Withdrawal of Attorney
Source Language
English
Civil Procedure Rescission of Judgment Procedural Irregularity Right to Fair Hearing Withdrawal of Attorney

Case Brief

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Parties

Suk Bok Han

Applicant

Sang Jun Kim

Respondent

Procedural Posture

Application for Rescission of Judgment / Judgment on Application for Rescission

Legal Issues

  1. 1 Whether the judgment granted on 1st November 1999 should be rescinded due to procedural irregularity and denial of fair hearing
  2. 2 Whether the withdrawal of the applicant's attorney without proper notice constituted a procedural irregularity under Rule 15(4)
  3. 3 Whether the applicant provided a reasonable explanation for his absence and demonstrated a bona fide defence

Ratio Decidendi

The court found that a procedural irregularity occurred when the applicant's attorney withdrew without proper notice to the applicant, violating Rule 15(4). This denied the applicant a fair hearing as required by Section 12(8) of the Constitution. The court exercised its discretion to rescind the judgment granted in the applicant's absence, holding that the explanation for default was reasonable and that the merits of the defence should be determined at trial.

Court Disposition

application for rescission granted

Orders

  • The respondent is granted leave to have the case CIV/T/258/99 set down within thirty days to a suitable date for hearing.
  • The applicant may file any process regarding his original plea, if he so decides.