Lesotho Association of non-Formal Education V Women Going Beyond & Ano. (CCT/0285/2023) [2025] LSHC 86 (10 April 2025)

# Lesotho Association of non-Formal Education V Women Going Beyond & Ano. (CCT/0285/2023) [2025] LSHC 86 (10 April 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/86/eng@2025-04-10) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/86/eng@2025-04-10) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2025/86/eng@2025-04-10) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2025/86/eng@2025-04-10) [ __](mailto:?subject=Take a look at this document from LesLII: Lesotho Association of non-Formal Education V Women …&body=https://lesotholii.org/akn/ls/judgment/lshc/2025/86/eng@2025-04-10) [ Download PDF (285.9 KB) ](/akn/ls/judgment/lshc/2025/86/eng@2025-04-10/source) Report a problem __ * Share * [ Download PDF (285.9 KB) ](/akn/ls/judgment/lshc/2025/86/eng@2025-04-10/source) * * * * * Report a problem __ ##### Lesotho Association of non-Formal Education V Women Going Beyond & Ano. (CCT/0285/2023) [2025] LSHC 86 (10 April 2025) Copy citation * __Document detail * __Related documents Citation Lesotho Association of non-Formal Education V Women Going Beyond & Ano. (CCT/0285/2023) [2025] LSHC 86 (10 April 2025) Copy Media Neutral Citation [2025] LSHC 86 Copy Hearing date 18 February 2025 Court [High Court](/judgments/LSHC/) Court registry [Commercial Division](/judgments/LSHC/LSHC-commercial-division/) Case number CCT/0285/2023 Judges [Mokhesi J](/judgments/all/?judges=Mokhesi%20J) Judgment date 10 April 2025 Language English Summary Read full summary * * * Skip to document content **__** **_IN THE HIGH COURT OF LESOTHO_** **(COMMERCIAL DIVISION)** **HELD AT MASERU CCT/0285/2023** **** **LESOTHO ASSOCIATION OF** **NON-FORMAL EDUCATION APPLICANT** **AND** **WOMEN GOING BEYOND 1 ST RESPONDENT** **DEPUTY SHERIFF – LEBOHANG ‘MIKA 2 ND RESPONDENT** **_Neutral Citation:_****** Lesotho Association of Non-Formal Education v Women Going Beyond & Another [2025] LSHC 86 Comm. (10 APRIL 2025) **CORAM: MOKHESI J** **HEARD: 18 FEBRUARY 2025** **DELIVERED: 10 APRIL 2025** **** **_SUMMARY_** **CIVIL PRACTICE:**_This is the rescission application launched following the granting of default judgment on account of the defendant’s for non-appearance on the date of hearing- The defendant lodged the rescission application out of time and without the formal condonation application being made- at the hearing upon realizing that the application was sought without condonation, counsel for the defendant sought to move the application from the bar-Held, condonation application must be sought as soon as the non-compliance becomes apparent- Waiting inordinately and on the eleventh hour to seek condonation will amount to an abuse of the court process- In the circumstances, the rescission application is dismissed with no order as to costs._ **ANNOTATIONS** **LEGISLATION** _High Court Rules 1980_ _High Court Litigation Rules, 2024_ **** **CASES** **LESOTHO** _Christoffel Smith v Tšepong (Pty) Ltd (C of A (CIV) No. 22/2020_ _Leseli Hub Limited v Legalize Daily and Another C of A (CIV) No. 47/2022_ _National University of Lesotho and Another v Thabane LAC (2007-2008) 476_ **SOUTH AFRICA** _Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA)_ **_JUDGMENT_** [1] **Introduction** This is an application for rescission of a default judgment which was granted on 05 September 2023 due to the defendant’s default to enter appearance to defend. The parties will be referred to as they were in the main action, the applicant as the defendant and the 1st respondent as the plaintiff. [2] **Background Facts** The plaintiff had issued summons against the applicant seeking payment of the sum of M258,700,82 plus interest and costs. The dispute between the parties stems from the alleged unpaid sums by the plaintiff based on the partnership agreement between them for conducting election-related activities on behalf of the Independent Electoral Commission. The process of soliciting a suitable party for these activities was through open tendering which was won by the defendant who in turn concluded a partnership agreement with the plaintiff. This project related to civil electoral education prior to the 2022 National elections. [3] The defendant was served with the summons on 24 July 2023 and on 05 September 2023, the plaintiff sought default judgment before this court and was granted on the same day. Default judgment was granted because the defendant having been duly served with summons failed to enter appearance to defend within the times provided for in the rules of this court. The Deputy Sheriff on 14 December 2023 served this Court’s Order together with the writ of execution upon the defendant. For the fact that there were no movable assets available for execution, the Deputy Sheriff made a _nulla bona_ return and identified the applicant’s immovable property which could be executed. Even after these incidents they did not act until 01 March 2024 when they moved this application on an urgent basis seeking reliefs outlined therein. After hearing counsel, this matter was removed from the urgent motion roll for lack of urgency. [4] **Parties’ respective cases** One Lisemelo Mosakeng deposed to an affidavit on behalf of the defendant and deposed that the defendant entered into a partnership agreement with the plaintiff and that dispute arose over the claim the latter had submitted. The claim was rejected by the defendant because all the work which had been done had been paid for by the Independent Electoral Commission, and nothing remained unclaimed. And because the plaintiff was dissatisfied with this explanation, serious fractures in the parties’ relationship emerged and got worse to the point where the deponent alleges that the office-bearers of the plaintiff drove a concerted effort to oust her from her position. This mistrust led to the court process being ignored. [5] She avers that the applicant was not in willful of appearance when regard is had to the history of mistrust between herself and the office-bearers of the plaintiff. She avers that the power of attorney which was granted to the plaintiff’s legal representatives was granted by an individual who had no authority to do so when regard is had to the extract of the minutes of the meeting of the Executive Committee of the plaintiff. Secondly, she states that there is no money owing to the plaintiff as it has been paid, and paragraph 10.2.3.1 says _“.. that all monies owing to the 1 st respondent have already been paid to the 1st respondent and this will be proven in court should the court so allow”._ She further avers that the defendant is not indebted to the plaintiff as the latter is _“claiming payment of monies as projected from the project plan not actual monies as claimed and paid by the IEC for work actually done.”_ [6] In response the plaintiff takes issue with the alleged mistrust. The deponent to the plaintiff’s answering affidavit denies that Kholu Tsumane is the officer bearer of the plaintiff. She, however, acknowledges that she is her relative but that the said Kholu has nothing to do with the activities of the plaintiff. The deponent avers that in terms of the income sharing ratios agreed to by the parties the defendant was to get 53.2% and the plaintiff 46.8% on satisfying the IEC requirement on valid receipts. The reduced budget for the project stood at the amount of M2,422,738.50 and this common cause. The initial payment being 30% of the reduced budget was M726,821.55. The plaintiff avers that the last payment made by the IEC was an amount of M793,688.51 according to the receipts which it submitted, which in terms of the ratios would have entitled it to M220,880.00 while the defendant M516,648.51. [7] At paragraph 16 of the plaintiff’s answering affidavit, the deponent states that: _“16 The second disbursement from the IEC was supposed to be split in the sum of M350 588.00 in favour of the defendant and M308 412.00 in favour of the plaintiff. The final disbursement was in the sum of M793 688.51. It means that the defendant would be entitled toM516 648.51 while the plaintiff would be entitled to M220 880.00. The amount claimed according to the receipts which the plaintiff submitted was the sum of M479 508.82 and leaving a balance of M258 700.82._ [8] The parties are in agreement that there was reconciliation that was made and that consequent to it, a payment of M40 000.00 and M180 000.00 was made to the plaintiff, which the latter states that it was unexplained. The defendant denies that the plaintiff was entitled to M340,152.49 and M386,669.00 as it says this did not factor in 5% management fee. The defendant states that the payment was fully explained as it followed a meeting which was held whereat it was discovered that there was a miscalculation regarding the balance due to the plaintiff. It was discovered that the amount owing was M275 000.00 and that the payment of an amount of M180, 000.00 plus the management fee in the amount of M40, 000.00 was made as the last and final payment. In short, as the last and final payment, an amount of M220, 000.00 was made to the plaintiff. [9] The plaintiff’s case is based on the receipts which it says it submitted in the sum of M479 508.82, from which it avers the defendant only paid M220 880.00 leaving the balance of M258 7000.82 which it says remains owing and is the basis of it issuing the summons. In response to this averment, the defendant, at paragraph 15 of its replying affidavit pleads as follows: _“AD PARA 16_ _15.1 Contents herein are denied. We reiterate that the deponent has no firsthand knowledge of the matter as it unfolded, clearly, she is not privy to the fact that there was management fees and the budget was not utilized as planned. Thus, the figures shown by the plaintiff are denied in their entirety._ _15.2 I verily aver that this is a material dispute of fact which warrants that the rescission application be granted as this matter need not be argued on paper to establish the truth of the matter, we deny the contents of this paragraph in its entirety.”_ [10] In its founding affidavit the defendant raised an issue with regard to the plaintiff counsel’s authority to represent it. It is couched as follows: _“10.1 _Fatally flawed application which lacks proper authority__ _10.1.1. As indicated above, the power of Attorney granted to the legal representative who represented the 1 st Respondent in the main matter was granted by an individual who seemingly had no authority to do so as per the extract of the minutes attached._ _10.1.2 The said authority was granted to the 1 st Respondent’s president named as ‘Makelebone Khalane and not to Kekeletso Tsumane who appears to have given the power of attorney granting authority to sue. This is per annexure LNF1 hereunto attached.”_ [11] **Issues:** ****(i) Condonation for the late filing of the application. (ii) Authority of Mei & Mei Attorneys to represent the plaintiff. (ii) The merits. [12] **Lack of application for condonation for late filing of rescission application** **** This application was lodged in terms of Rule 27 of the old the now-repealed High Court Rules 1980 (The ‘old-rules’). However, in terms of Rule 195 of the High Court Litigation Rules 2024, anything done in terms of old rules will be deemed to have been done under the corresponding rule in the new rules. The corresponding rule is Rule 140(1), and it is the same as the old Rule 27. It provides that where default judgment has been granted against the respondent for his/her non-appearance on the date of hearing in terms of rule 139 (4), he may within twenty-one days after his knowledge of such judgment apply to court on notice to rescind it. In the present matter default judgment was granted against the defendant on 05 September 2023 after having failed to enter appearance to defend the matter. The Court Order and the writ of execution was served upon the plaintiff on 14 December 2023. The deputy sheriff failed to identify movable assets liable for execution, he could only identify an immovable property which houses the plaintiff’s offices. He accordingly filed a _nulla bona_ return. The plaintiff then directed the deputy sheriff to serve the writ of attachment of the said immovable property on 06 February 2024. This writ was served on the defendant on 15 February 2024. It was only on 23 February 2024 that the defendant sprang into action and launched the current application on an urgent basis seeking the reliefs outlined therein. Urgency was, however, rejected by the court as already stated in the preceding paragraphs. [13] This chronology of events serves to illustrate the amount of time lapse which ensued since the defendant got to know of the order of this court and did nothing. Rule 140 provides that rescission application be lodged within twenty-one days after the order of court came to the knowledge of the defendant. It is not difficult to see that the defendant waited inordinately long before she lodged the present application. This application is awfully out of time, and for it to be properly before court, a substantive application for condonation for its late filing should have been made. [14] When faced with the hurdle that the application was lodged without condonation being sought, Ms Mokebisa, for the defendant sought to move the application from the bar. The court rejected such an approach. I am fully alive to the caution which was issued in the case of **National University of Lesotho and Another v Thabane LAC (2007-2008) 476** at 480 E-J**** where the court makes a point that rules of court are meant to regulate the conduct of the proceedings to ensure an orderly, inexpensive and speedy disposal of cases. Legal practitioners are thus enjoined to fully acquaint themselves and abide by the rules as failure to do so may attract serious consequences. The court, however, warned against inflexible adherence to form so that in cases there is an inconsequential non-compliance with the rules the court would not be wrong to exercise its discretion to condone such non-compliance. The above presupposes that a proper condonation application would have been made. [15] Where no application for condonation has been made the matter stands on a different footing, the issue being whether the court can be better placed to condone non-compliance with the rules where no substantive application for condonation has been made. Rule 180 permits the court to condone non-compliance with the rules on good cause being shown by the defaulter. It should be recalled that condonation is not to be had merely for the asking, it is an indulgence which the court in exercising its discretion grants on good cause being shown. It must be sought as soon as the non-compliance becomes apparent. To wait inordinately and on the eleventh hour to seek condonation will amount to an abuse of the court process. (**Christoffel Smith v Tšepong (Pty) Ltd (C of A (CIV) No. 22/2020**dated 14 May 2021**** at**** para. [61]). [16] In condonation applications, full, detailed and accurate causes of the delay and their effect must be laid out so that the court is placed in a position where it can clearly understand the reasons for non-compliance and to assess responsibility. Where, like in the present case, non-compliance is time-related _“then the date, duration and extent of any obstacle on which reliance is placed must be spelled out”_**(Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) **at para. [6]). In the present matter, the rescission application was lodged without a formal application for condonation. The result is that this application should be dismissed **(** see**Leseli Hub Limited v Legalize Daily and Another C of A (CIV) No. 47/2022 **dated 11 November 2022).__ This conclusion renders unnecessary to deal with the issue of authority of Mei & Mei Attorneys to represent the plaintiff and the merits of the application. [17] **Costs** **** The plaintiff’s counsel only filed the heads of argument on the day of hearing, and as a mark of my displeasure, I made it clear that were the plaintiff to succeed in opposing this application it will be deprived of its costs. [18] In the result the following order is made: 1. The application is dismissed with no order as to costs. **_____________________** **MOKHESI J** **For the Applicant: Ms Mokebisa** **For the 1 st Respondent: Mr. Q. Letsika** **For the 2 nd Respondent: No Appearance** #### __Related documents ▲ To the top >