Vicente v Lesotho Bank Limited (CIV/APN 350 of 99) [2000] LSCA 38 (2 February 2000)

1 CIV/APN/350/99 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: Q U I N T I NO G O N C A L V ES V I C E N TE Applicant and L E S O T HO B A NK L I M I T ED Respondent J U D G M E NT Delivered by the H o n o u r a b le M r. Justice T. M o n a p a t hi on the 2 nd d ay of F e b r u a ry 2 0 00 T h is w as an application for rescission of a j u d g m e nt on the basis that it w as granted by mistake c o m m on to all the parties. Parties herein w e re the s a me u n d er the a b o ve case n u m b er in a matter (original application) in w h i ch j u d g m e nt w as entered against the Applicant on the 21st O c t o b er 1 9 9 9. It w as that j u d g m e nt w h i ch the Applicant w a n t ed to be rescinded, in the present application, in t e r ms of R u le 45(1)(c). He said there h ad b e en a mistake as a result of w h i ch the j u d g m e nt w as decided on facts, a version of which h ad b e en supplied by the R e s p o n d e nt a nd "with w h i ch R e s p o n d e nt subsequently concurred." It sufficed to spell out the prayers in the original application . T h ey w e re in part, as follows:: 1. Dispensing with the n o r m al periods of notice prescribed by the Rules. 2. Interdicting the respondent f r om selling the Applicant's i m m o v a b le property consisting of business premises on a portion of the plot bearing L a nd A ct Lease n u m b er 2 3 1 2 3 - 2 13 situate at M a p u t s o e, in - the Leribe district w h i ch portion m e a s u r es 1 4 85 square metres save pursuant to a j u d g m e nt by a court of c o m p e t e nt jurisdiction against the Applicant in favour of the respondent. 3. Interdicting the sheriff a nd deputy-sheriffs of this H o n o u r a b le C o u rt f r om acting u p on a ny writ of execution or other similar instrument purporting to authorise such sale. 4. Directing the respondent to p ay the costs of this application. 5. Granting the applicant further or alternative relief." I h a ve underlined the plot n u m b er because it b e c a me relevant in this application. Applicant said at paragraph 4 of the founding affidavit that it w as after j u d g m e nt w as reserved in the original application that he w as able to ascertain the true facts. This led h im to launch another application n a m e ly C I V / A P N / 4 6 8 / 9 9, in w h i ch Applicant sues the R e s p o n d e nt a nd t wo others for release of a certain lease n u m b er 2 3 1 2 3 - 2 13 (in the n a me of M o o ki M o l a p o) a nd other prayers. In this C I V / A P N / 4 6 8 / 99 reference is m a de to investigations m a de while the j u d g m e nt in original application w as reserved. T h is investigation revealed that the case n u m b er b e t w e en the First R e s p o n d e nt a nd o ne M o o ki M o l a po in respect of w h i ch a writ w as issued w as in Civil Trial 4 94 of 1 9 9 2. T he writ that w as generated by the j u d g m e nt in the said trial related to the property on plot n u m b er 2 2 1 2 4 - 0 01 M a p u t s oe a nd n ot 2 1 3 1 2 3 - 2 13 as Applicant " h ad imagined". T h is m e a nt that he w r o n g ly believed that 2 1 3 1 2 3 - 2 13 w as the disputed plot h e n ce the basis of the original application. As Applicant said his investigations further revealed that the s u m m o ns c o m m e n c i ng action in the said trial w as an ordinary s u m m o ns for m o n ey lent a nd a d v a n c ed a nd h ad h ad n o t h i ng to do with a ny m o r t g a ge b o n d. T he writ w h i ch w as a n n e x u re G CV " 3" to Applicant's papers w as consequently issued against M o o ki M o l a po only after a nulla bona return h ad issued o ut in respect of his m o v a b le property. T h is w as the extent of the mistake within w h o se p r e m i se the original application w as granted. T he original application o u g ht accordingly to be rescinded. T he Applicant submitted so. T he mistaken version s e e ms to h a ve e m a n a t ed f r om the c o r r e s p o n d e n ce b e t w e en the First R e s p o n d e nt a nd the T h i rd R e s p o n d e nt regarding the said plot 2 3 1 2 3 - 2 13 a nd the further aspect of foreclosure of the m o r t g a ge b o n d. T h e se things did n ot c o n c e rn the a b o ve plot b ut a different o n e. T he Applicant said in the present application that he h ad no reason to believe that the R e s p o n d e n t 's officers w e re deliberately misleading h im in giving h im the information w h i ch f o r m ed the basis of the original application a n d: - " T h at in concurring therein they w e re equally deliberately misleading the a b o ve H o n o u r a b le C o u r t ". It w o u ld be difficult on my part to conclude that there w as a ny intention to deceive the Court. This w as m o re so w h en regard w as h ad to the fact that the mistaken reference to the plot by the Applicant h ad arisen as long a go as in the correspondence b e t w e en the Third Respondent's legal d e p a r t m e nt a nd M o o ki Molapo's attorneys as the j u d g m e nt in the original application shows. So that certainly the mistake as it appears has its origins in the e x c h a n ge of that correspondence even before the hearing of the original application. As long as it b e c a me a m u t u al mistake it w as unfruitful to inquire as to w ho caused the mistake. I noted that before the C o u rt it w as the Applicant w ho h ad stated on affidavit a nd revealed all the details w h i ch w e re the facts w h i ch resulted in the j u d g m e n t. Significantly, R e s p o n d e nt h ad h ad no affidavit filed but only took points of law. W h at w as important for my inquiry w as h ow the mistake affected the j u d g m e nt in the original application a nd particularly w h e t h er there w e re g o od grounds u p on w h i ch it could be invalidated. Counsel for Applicant spoke about the likely prejudice to the Applicant if a nd w h en the j u d g m e nt in the original application w as allowed to stand. T h at there w o u ld be a plea of re judicata against the Applicant. I m ay say instantly that if the object of the interdict sought by the Applicant in the original application w as to prevent the First R e s p o n d e nt f r om foreclosing on plot N o. 2 3 1 2 3 - 2 13 an extreme likelihood w as that the parties w o u ld never c o me b a ck a nd fight over the s a me issue m o re particularly over that plot. T h at fear of the Applicant about res judicata w as indeed unfounded. By a m i n i m um diligence on his p an he should h a ve detected the mistake about the plot over w h i ch he h ad no interest. A nd yet he b o u g ht the R e s p o n d e nt to Court. T h at writ, a n n e x u re Q CV " 3 ", should h a ve s h o wn Applicant the true facts. His contribution to the p r o b l em by bringing the R e s p o n d e nt to C o u rt s e e m ed to override a ny remissness on the part of other people. It w as a result of negligence on his part. T he dismissal of his application, w h i ch by his o wn confession, he h ad no cause to bring about, w as on the basis that he h ad no rights over the plot at all nor to the extent that he could prevent execution over the property. This r e m a i n ed the situation to the extent that the status q uo w o u ld r e m a in as it w as before the application. In short no rights of the Applicant w e re affected. T he b a nk w o u ld not foreclose because the cause of action n a m e ly over m o n ey lent a nd a d v a n ce w as different. E v en if it did that w o u ld not c o n c e rn h im as far as plot n o. 2 3 1 2 3 - 2 13 w as concerned. T he j u d g m e nt in the original application concerned rights of the R e s p o n d e nt over the said plot. H e n ce M r. M a t o o a ne for the First R e s p o n d e nt submitted that the application b e c a me a futile a nd an a c a d e m ic exercise w h en the true facts w e re considered. W hy w o u ld the j u d g m e nt in the original j u d g m e nt then threaten a ny rights of the Applicant? It s h o ws that the present application w as m o re of an a c a d e m ic exercise than a genuine fight over real rights. I agreed with M r. Sello that if appeal w as to be filed on the premise of the admittedly w r o ng facts or even supposing it w as over an issue that e m e r g ed on the w r o ng facts the appeal court w o u ld probably decide that this w as a matter for rescission. B ut in my respectful view such a C o u rt w o u ld go further a nd ask as to whether there w as a ny interest a nd w h at interest the Applicant h ad in the disputed rights a nd future litigation. T he basis of an application for rescission is that litigation is sought to be perpetuated (which is normally the intention of o ne of the parties). It is because rights h a ve to be finally decided. T he Applicant has no further rights in the j u d g m e nt nor did he profess to h a ve a ny in the future or in the past. T h at C o u rt on appeal w o u ld find that the exercise w as an a c a d e m ic one. On this g r o u nd the application ought to be dismissed. I w o u ld answer in the w ay I did a b o ve to M r. Sello's submission that should the Applicant decide to institute proceedings the C o u rt w o u ld decide that the matter w as res jusicata. T h at furthermore the effect w o u ld be that by reason of the j u d g m e nt in the original application the Applicant's rights w o u ld h a ve b e en closed out. O ne cannot imagine (again by Applicant's o wn confession), that further rights w o u ld be disputed by the Applicant over this plot N o. 2 1 3 1 2 3 - 2 1 3. Isn't the submission actually inviting a debate to resolve an a c a d e m ic exercise? W h at business w o u ld the C o u rt h a ve to buttress such an exercise? On this g r o u nd the application w as demonstrated not to h a ve h ad a ny merit. As I s aw it the dispute in the original application w as a b o ut the right of a third party (the Applicant) to prevent the m o r t g a g ee f r om foreclosing on a b o nd w h en the m o r t g a g or h ad defaulted. F u r t h e r m o re w h e t h er an a g r e e m e n t, of a sale, b e t w e en the third party (Applicant) a nd m o r t g a g or of a portion of the m o r t g a g ed land, w h e re no transfer h ad b e en passed in favour of the third party gave that third party the right to interdict foreclosure over the w h o le property. O n ce the mistake over the plot w as discovered this dispute could not be revisited. W hy w o u ld the Applicant pursue a matter w h i ch in reality he w o u ld h a ve no interest. T he mistake over w h i ch is sought to g r o u nd the rescission could h a ve b e en (and it was) in reference to the plot n u m b er 2 1 3 1 2 3 - 2 13 a nd that there w as (in fact) no foreclosure but a prior rula bona return over m o v a b l es followed by a writ over i m m o v a b le property. This h ad to be repeated. M r. M a t o o a ne submitted in that regard that the Applicant still h ad to prove that there w as a c o m m on mistake in terms of the law of contract a nd in addition a causative link b e t w e en the mistake a nd the granting of the order of judgment. T o w a r ds the latter C o u n s el referred the Court to the book T HE C I V IL P R A C T I CE OF T HE S U P R E ME C O U RT OF S O U TH A F R I CA (Herbstein and V an Winsen) 4th edition by M. D e n dy at pages 697 to 698. T he authors of the work speak about a mistake c o m m on to the parties and refer to the above requirements as submitted by M r. Matooane. T h ey say: "This requires that the mistake to relate to and be based on something to be decided by the Court at the time." A nd they referred to the case of T S H I V A SE R O Y AL C O U N C IL A ND A N O T H ER V T S H I V A SE A ND A N O T H ER 1992(4) SA 852(A) at 863AD. T he brief facts of the T S H I V A SE case w e re interesting. W h i le a dispute over chieftainship rights of the V e n da tribe between J o hn Tshivase a nd K e n n e dy Tshivase in the S u p r e me C o u rt w as pending, the President of V e n da in terms of certain legislation e m p o w e r i ng h im so to d o, referred the dispute to a Council of Chiefs (Khoro) "to assist with a solution." T he Council thereafter m et a nd as a result an advice w as given to the President by which J o hn w as appointed chief. T he pending application w as thereafter finalized confirming J o hn as chief. W h en the Council m et later for the first time after its said r e c o m m e n d a t i on of J o hn to the President, it w as revealed that there h ad never b e en such r e c o m m e n d a t i on as the minutes did not reflect so. "It w o u ld s e em this c a me as a surprise to m e m b e r s ." See p a ge 8 57 F - G. An application by K e n n e dy followed, to rescind the previous final order. It w as based on the allegation that the order h ad been granted as a result of a mistake c o m m on to both parties viz. that the K h o ro h ad resolved that J o hn should be the Chief. This w as not controverted. As a fact, as the C o u rt believed the President h ad not r e c o m m e n d ed J o hn as s o me chiefs h ad actually spoken against that. T he m i n u t es should h a ve reflected that it w as in fact resolved that the m a t t er be sent b a ck to the tribe to decide. T h ey h ad b e en altered by the President to reflect the contrary that is that J o hn be appointed. T he altered m i n u t es w e re circulated. O ne official w ho objected w as c h a r g ed of insubordination. T h is w as the position that w as revealed in the application for rescission w h i ch w as incidentally filed after the President's death. As in the present application the issue in the T S H I V A SE case w as w h e t h er the first j u d g m e nt w as granted as a result of a mistake c o m m on to b o th parties. In the T S H I V A SE case b o th disputants believed that the C o u n c il h ad r e c o m m e n d ed that J o hn be m a de the Chief. In the present case the parties h ad believed that the dispute w as o v er plot n o. 2 3 1 2 3 - 2 1 3. On the question of the right of foreclosure (which the original application w as also c o n c e r n ed with) R u le 45(1) envisages firstly that that evidence if k n o wn should h a ve c a u s ed the C o u rt to reach a different decision. T h is w as so b e c a u se n ot only should a mistake be relevant it m u st be f u n d a m e n t a l. H ow c an it be f u n d a m e n t al w h en the present Applicant, by his o wn admission, w as disputing a right o v er a plot in w h i ch as a fact he h ad no interest? If he h as no interest to plot 2 3 1 2 3 - 2 13 then there is n o t h i ng f u n d a m e n t al a b o ut his rights. T h at substratum of the j u d g m e nt in the original application could only h a ve b e en constituted in favour of the Applicant if the A p p l i c a nt h ad an interest in the plot w h i ch he claimed. T h is I say despite the reference to plot 2 3 1 2 3 - 2 13 in the notice of m o t i on in C I V / A P N / 4 6 8 / 9 9. It is n ot a reference to plot no 2 2 1 2 4 - 0 0 1. Contrast this with w h at is contained in p a r a g r a ph 4.2.1 of the founding affidavit in that application. T he case of T S H I V A SE is to be distinguished in that it f o u nd that the mistake about the assumption that the Council h ad r e c o m m e n d ed J o hn w as the substratum of the j u d g m e n t. If the Applicant herein h ad said he w o u ld continue to claim the rights over plot no. 2 3 1 2 3 - 2 13 that w o u ld be a different matter. Perhaps then, there w o u ld be a basis for constituting that mistake as a fundamental one. B ut w o u ld he really claim the s a me rights on similar set of circumstances about which he has said (such circumstances) were mistaken? T he answer should be in the negative. I thought the application should be dismissed with costs. T. M o n a p a t hi J u d ge 2nd February, 2 0 00 For the Applicant : M r. Sello For the R e s p o n d e nt : M r. M a t o o a ne