Lesotho Association of Non-Formal Education V Women Going Beyond & Ano. (C of A (CIV) No.37/2025) [2025] LSCA 61 (7 November 2025)

# Lesotho Association of Non-Formal Education V Women Going Beyond & Ano. 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(C of A (CIV) No.37/2025) [2025] LSCA 61 (7 November 2025) Copy citation * __Document detail * __Related documents Citation Lesotho Association of Non-Formal Education V Women Going Beyond & Ano. (C of A (CIV) No.37/2025) [2025] LSCA 61 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 61 Copy Hearing date 21 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No.37/2025 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA) Judgment date 7 November 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) Summary ###### Flynote Civil Procedure – Rescission of default judgment – Failure to enter appearance to defend – Rule 27 (old Rules) and Rule 45 of the High Court Rules 1980 distinguished – Requirement of formal condonation application for delay – Misguided refusal by court a quo to consider “good cause” under Rule 27(6)(c) – Judicial discretion to rescind – Court of Appeal’s power to interfere where discretion not properly exercised – Distinction between authority to sue and validity of power of attorney emphasized – Resolution to litigate not equivalent to proper authorization to act – Default judgment rescinded and matter remitted to High Court for hearing on the merits. Read full summary * * * Skip to document content ###### Flynote Civil Procedure – Rescission of default judgment – Failure to enter appearance to defend – Rule 27 (old Rules) and Rule 45 of the High Court Rules 1980 distinguished – Requirement of formal condonation application for delay – Misguided refusal by court a quo to consider “good cause” under Rule 27(6)(c) – Judicial discretion to rescind – Court of Appeal’s power to interfere where discretion not properly exercised – Distinction between authority to sue and validity of power of attorney emphasized – Resolution to litigate not equivalent to proper authorization to act – Default judgment rescinded and matter remitted to High Court for hearing on the merits. 1 LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD IN MASERU C OF A (CIV) 37/2025 In the matter between: LESOTHO ASSOCIATION OF NON- FORMAL EDUCATION APPELLANT AND WOMEN GOING BEYOND 1ST RESPONDENT DEPUTY-SHERIFF LEBOHANG ‘MIKA 2ND RESPONDENT CORAM: MOSITO P SAKOANE CJ VAN DER WESTHUIZEN AJA HEARD: 21 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 FLYNOTE Civil Procedure – Rescission of default judgment – Failure to enter appearance to defend – Rule 27 (old Rules) and Rule 45 of the High Court Rules 1980 distinguished – Requirement of formal condonation application for delay – Misguided refusal by court a quo to consider “good cause” under Rule 27(6)(c) 2 – Judicial discretion to rescind – Court of Appeal’s power to interfere where discretion not properly exercised – Distinction between authority to sue and validity of power of attorney emphasized – Resolution to litigate not equivalent to proper authorization to act – Default judgment rescinded and matter remitted to High Court for hearing on the merits. Held: The failure to file a formal condonation application for delay is not, in itself, fatal where the court can evaluate good cause from the totality of the facts. A resolution to litigate and the signing of a power of attorney are conceptually distinct acts; a defective power of attorney cannot be cured by a general resolution. The High Court misdirected itself by refusing rescission solely on procedural lateness without assessing good cause and prospects of success. Appeal upheld; condonation granted; matter remitted to the High Court for determination of the rescission application on the merits. JUDGMENT SAKOANE CJ: Background facts [1] On 30 June 2023, the 1st respondent’s attorneys sued out summons’ against the appellant claiming: “(a) Payment of the sum of M258 700.82 (Two Hundred and Fifty-Eight Thousand Seven Hundred Maloti and Eighty-Two Lisente; (b) Interest thereon at the rule of 18.5% per annum from 1 June 2025 to date of payment; (c) Costs of suit; (d) Further and/or alternative relief.” 3 [2] The appellant was served with the summons on 24 July but failed to enter appearance to defend within the stipulated seven days in non-compliance with Rule 19(1) of the High Court Rules, 1980. [3] On 29 August, the 1st respondent’s attorney appeared before Mokhesi J and applied for default judgment. [4] On 5 September default judgment was granted. [5] On 4 December, a writ of execution was issued. [6] On 18 December a nullo bona return of service on movables was filed. [7] On 6 February 2024, a writ of attachment of immovables was issued. [8] On 23 February, the appellant filed an application for rescission of default judgment, which application was opposed the following day by the 1st respondent. [9] On 10 April 2025, the rescission application was dismissed. [10] On 27 May, this appeal against the dismissal of the rescission application was noted. 4 [11] On 19 September, a condonation application for the late filing of the appeal record and reinstatement of the appeal on the roll was filed. Condonation applications [12] Miss Mokebisa, for the appellant, submitted that the delay in filing the appeal record was late by two days. The last day thereof fell on a weekend which is not a day for court business. The condonation application was filed compliance with Rule 15. [13] Mr Letsika, put up a spirited fight but eventually threw in the tunnel upon realizing that Rule 15(1), (2) and (3) provide a firm ground for granting condonation. The Rule reads thus: “Effect of breach of Rules 15 (1) If an appellant breaches provisions of these Rules, his appeal may be struck off the roll. (2) The Court shall have a discretion to condone any breach on the application of the appellant. (3) Such application shall be by notice of motion delivered to the respondent and to the Registrar not less than seven days before the date of hearing.” [14] The delay is de minimis. The condonation applications were granted clearing the way for hearing the appeal on the merits. Rescission application 5 [15] The deponent to the founding affidavit in the rescission application is the Secretary and Program Coordinator of the appellant. She gave the following reasons for the appellant’s default of appearance: 15.1 At the time of service of summons, she believed that court papers were manufactured and that the 1st respondent used intimidation tactics against the 1st appellant by sending the 2nd appellant to extort money. 15.2 The belief of extortion of money was also based on the fact that the power of attorney was signed by Kekeletso Tsumane (a relative of one Kholu Tsumane with whom the deponent had a bad relationship. 15.3 The resolution of the appellant’s Executive Committee gave its President Makelebakae Khalane power to sign the power of attorney and not Kekeletso Tsumane. 15.4 The power of attorney to sue was granted by a person without authority. 15.5 The legal representative of the 1st respondent had no lawful authority to represent. 15.6 The court papers and the default judgment were irregularly obtained, making them fatally flawed. [16] In the answering affidavit Kekeletso Tsumane admitted that: 16.1 She signed the power of attorney as one of the persons authorized by the Executive Committee of the 1st respondent. 6 16.2 She received reports from the 1st respondent’s attorney about service of the court order and writ of execution. [17] She also contended that: 17.1 It is the resolution to institute proceedings and not the power of attorney that demonstrates capacity to litigate. 17.2 The proceedings were authorized by the resolution and, therefore, a valid and enforceable judgment was properly obtained. 17.3 The summons were sued out following the resolution and the appellant acted unreasonably and negligently by ignoring the summons as well as the writ of execution. Dismissal of rescission application [18] The learned Judge a quo dismissed the rescission application with costs. In the reasons for judgment, he said: 18.1 The default judgment was granted on 5 September 2023 while the court order and writ of execution were served on the appellant on 14 December. 18.2 The appellant only brought the rescission application on 23 February 2024. 18.3 The period within which to bring a rescission application is twenty-one days after the appellant became aware of the court’s order. 7 18.4 The application was hopelessly out of time and could only be entertained if there was a substantive condonation application. 18.5 There was no such application and the one sought to be moved from the Bar is rejected. Grounds of appeal [19] The appellant is before this Court to reverse the dismissal of the rescission application on the following grounds: “1. The court a quo erred and misdirected itself by holding that the matter was brought in terms of Rule 27 of the High Court Rules 1980 (the old rules) when in actual fact it was brought in terms of rule 45 of the said rules. 2\. The court erred and misdirected itself by dismissing the application in terms of rule 195 of the Civil Litigation Rules 2024 (new rules) by comparing rule 27 of the old rules to rule 140(1) of the new rules when the application was not based on the said rule. 3\. The court erred and misdirected itself by not appreciating that the matter was brought in terms of rule 45 of the old rules and a comparable provision in the new rules in terms of rule 195 is rule 76.” Discussion [20] During oral argument, the attorney for the appellant sought to take the point that the learned Judge failed to address the challenge that the power of attorney was irregular because it was signed by a person other than the one named by the 1st respondent in its resolution of its meeting of 30 June 2023. 8 [21] The name of the person referenced in the said resolution is Makelebakae Khalane the President of the 1st respondent and not Kekeletso Tsumane who signed the power of attorney. [22] Indeed, on reading the judgment of the court a quo, this apparent discrepancy is not discussed at all, although the learned Judge flagged it as one of the issues for determination. [23] The attorney for the 1st respondent countered by submitting that what is dispositive to the challenge is the resolution and not the signatory of the power of attorney. The 1st respondent resolved that legal proceedings be instituted and if the wrong person signed, that is an in-house matter that should not concern of the appellant. [24] There is a conceptual difference between a resolution by a juristic person to litigate and grant of a power of attorney to a legal representative. Therefore, a resolution cannot perfect an unauthorized legal representation. [25] A distinction should be made between a challenge of authority to sue made on the basis that there is no resolution passed on the one hand, and a challenge based on the assertion that the power of attorney is signed by a person other than the one authorized to do so. In the former situation, this Court has said that there is no invariable rule requiring that the resolution be filed. It suffices that if its 9 existence appears from the facts1. In the latter situation, Rule 15(1) of the High Court Rules, 1980 requires that a power of attorney be filed. Therefore, it does not suffice if its mere existence is referenced in the pleadings. [26] The Rule provides that: “Any party bringing or defending any proceedings in person may at anytime appoint an attorney to act on his behalf, who shall file a power of attorney and give notice of his name and address to all other parties to the proceedings.” [27] Although the sub-rule does not spell out the procedure for challenging a power attorney, I consider that it is necessarily implicit in the sub-rule that a party is entitled to mount a challenge where there is non-compliance with it. This is a matter of procedural justice in that institution of proceedings should be done without property authorization. [28] The sub-rule makes the obtaining and filing of a power of attorney mandatory. The purpose is two-fold: (a) to prevent a party cited in the summons or court process from thereafter repudiating or denying his authority for the process to be issued; and (b) to prevent persons from instituting proceedings in the names of others who never granted them authority2. 1 Central Bank of Lesotho v. Phoofolo LAC (1985-89) 253 2 Jones and Buckle The Civil Practice of the Magistrates’ Courts in South Africa Volume II 8th Edition p.383-384 10 [29] A challenge of the authority of a person representing a party may be raised orally; in the answer or special answer; as a defence; in interlocutory proceedings and at any time before judgment3. The animating principle is that life, liberty, property and reputation should not be taken away by means of unauthorized litigation. Failure to file a proper power of attorney is not a mere formality.4 It purpose is to make it certain that the litigation is authorized. [30] The elephant in the room is the learned Judge’s non-consideration of the challenge to the validity of the grant of power of attorney to the 1st respondent’s legal representative. [31] Although the challenge is pleaded in the application for rescission, it does not form part of the grounds of appeal. The appellant is, therefore, precluded from arguing it – especially without leave of court5. [32] In Nqaka6, this Court said that Rule 27(6)(c) requires an applicant to show good cause. The Rule required the court a quo to enquire whether or not the appellant had good cause for rescinding the default judgment. In this connection, this Court adopted the following dicta from Melane7: “In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and 3 Ibid 4 SCIG – SMCG –TIM Joint Venture and Another v. UNIK Construction engineering (Pty) Ltd C of A (CIV) 50/2020 (14 May 2021) 5 Lephosa v. Director of Public Prosecutions LAC (2007-2008) 64 6 Nqaka v Registrar of the High Court And Others LAC (2013-2014) 167 7 Melane v Sanlam Insurance Co. Ltd 1962(4) SA 531(4) SA 531(A) @ 532 C-E 11 in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked.” [33] Thus, in adjudicating a rescission application, the interrogation of the delay and its condonation is not done in isolation or individually, but together with the assessment of prospects of success. As said by the Constitutional Court of South Africa in Ferris8. “Lateness is not the only consideration in determining whether condonation may be granted… the test for condonation is whether it is in the interests of justice to grant it … an applicant’s prospects of success and the importance of the issue to be determined are relevant factors.” Disposition [34] In refusing the application to rescind, the court a quo rested its judgment upon the view that the appellant’s delay was uncondonable. It followed that the learned Judge’s view was that he did not have to decide whether the appellant had good 8 Ferris v. Firstrand Bank Limited 2014(3) SA 39(CC) 12 cause for having the judgment rescinded and, therefore, did not have to consider whether, assuming the facts did not preclude him from rescinding the judgment, he would have exercised his discretion in favour of the appellant. [35] By confining himself to the appellant’s failure to file a formal condonation application for the delay, the learned Judge committed a misdirection in law. This Court is entitled to interfere with a wrong exercise of discretion. [36] In the circumstances this Court can and should interfere with the exercise of discretion in accordance with the following test: “A court sitting on appeal on sentence should always guard against eroding the trial Court’s discretion in this regard, and should interfere only where the discretion was not exercised judicially and properly. A misdirection that would justify interference by an appeal Court should not be trivial but should be of such a nature, degree or seriousness that it shows that the Court did not exercise its discretion at all or exercised it improperly or unreasonably.”9 Order [37] In the result, the following order is made: 1\. The applications for condonation late filing of the appeal and its reinstatement is granted. 2\. The appeal is upheld. 3\. The order of the court a quo is set aside. 9 Barnard v The State 2004 (1) SACR 191 (SCA) at para [9] 13 4\. The matter is remitted back to the court a quo to hear the application for rescission on the merits. 5\. The respondent must pay the costs of the appeal. ___________________________ S. P. SAKOANE CHIEF JUSTICE I agree ____________________________ K. E. MOSITO PRESIDENT OF THE COURT OF APPEAL I agree __________________________________ J. VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL FOR THE APPELLANT: M. MOKEBISA FOR THE 1ST RESPONDENT: Q. 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