IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
THE GOVERNMENT OF THE KINGDOM OF LESOTHO
and
TRENCON BUILDING WORLD BELELA JOINT
VENTURE
TRENCON CONSTRUCTION (PTY) LTD
IN RE:
TRENCON BUILDING WORLD BELELA JOINT
VENTURE
TRENCON CONSTRUCTION (PTY) LTD
and
THE GOVERNMENT OF THE KINGDOM OF LESOTHO
Not reportable
Case no: 3341/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
FIRST APPLICANT
SECOND APPLICANT
RESPONDENT
Neutral citation: The Government of the Kingdom of Lesotho v Trencon Building
1
Coram:
Heard:
Delivered:
World Beteta Joint Venture and Another (3341 /2024) [2025)
ZAFSHC 327 (16 October 2025)
MHLAMBI J
12 June 2025
This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 16h00 on 16 October 2025.
Summary: Rescission of judgment-Uniform Rule 42(1 )(a)-common law
- default judgment - duty of disclosure - international arbitration - foreign state
immunity.
2
ORDER
The application succeeds and costs are to be costs in the main application
JUDGMENT
Mhlambi J
[1] There are two applications before the court: the first is to admit additional
affidavits into evidence, while the second aims to rescind the order granted by Van
Rhyn , Jon 28 November 2024. The applicant is the respondent, and the respondents
are the applicants in the main application. The order of 28 November 2024 states as
follows:
'1. The appeal arbitration award of the appeal arbitral tribunal (Retired Justice of Appeal Brand,
Advocate Gautschi SC and Advocate Zietsman SC) dated 14 March 2024 and transmitted to
the parties on 7 March 2024, is made in order of court in terms of section 16(3) of the
International Arbitration Act (15 of 2017).
2. The respondents shall pay the costs of this application, including the costs of two counsel
on Scale C.'
[2] On 10 December 2024 , the applicant applied for an order in the following
terms:
'1. The court order issued by the Honourable Madam Justice Van Rhyn on 28
November. 2024:
1.1 is hereby declared to be void and of no force or effect.
1.2 alternatively: is hereby rescinded and set aside.
2. The main application is postponed to a date to be arranged as between counsel for
the parties, in consultation with the Registrar.
3. The costs of this application will be costs in the main application.
4. Granting further or alternative relief.'
3
[3] The application is opposed. On 5 January 2025, the respondents served the
applicant with the transcript of the proceedings held before Justice Van Rhyn. On
31 January 2025, they filed and served their answering affidavits. On 14 February
2025, the applicant filed and served its replying affidavit. On 17 March 2025, the
applicant filed and served supplementary founding papers. The respondents filed their
affidavit in response to the applicant's supplementary affidavit in the application for
rescission. The applicant filed its replying affidavit on 11 April 2025.
[4] At the start of the hearing, both parties agreed to proceed on the basis that
all the papers were before the court, allowing the court to make a single decision after
hearing the parties' submissions on all the facts. The respondents' view was that the
additional affidavits raised only a limited issue. The application is based on two
grounds: that the order was made or granted in error, and on common law principles.
Brief background
[5] The applicant and the first respondent entered into a construction contract to
build and upgrade healthcare facilities in Lesotho. An arbitration agreement specified
that any disputes would be resolved through arbitration and that the law governing the
contract was that of Lesotho. Several disputes related to the contract arose and were
referred to arbitration. Awards were initially granted to the applicant. An appeal was
filed with the appointed tribunal, which included retired Judge Brand, Advocate J
Gautchi SC , and Advocate J Zietsman SC . The tribunal's award on appeal was in favor
of the respondents.
[6] The applicant was dissatisfied with the award and filed proceedings to set it
aside in the Lesotho High Court on 8 May 2024. The applicant obtained a ruling in
their favor, temporarily staying the recognition and enforcement of the award until the
validity challenge is resolved. The order was finalised on 2 July 2024, by the Lesotho
validity challenge is resolved. The order was finalised on 2 July 2024, by the Lesotho
High Court. The respondents submitted their notice of appeal regarding both orders
on 13 August 2024.
[7] On 20 June 2024, the respondents filed the application in this Court, leading
to the order of 28 November 2024. The applicant opposed the application on 20 August
2024 and served its answering affidavit in the main application on 10 September 2024.
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The respondents filed an index and a notice of set down on 30 October 2024. An
amended index was delivered on 1 November 2024. The respondents' practice note,
heads of argument, chronology and draft order were delivered on 20 November 2024.
Correspondence was exchanged between the parties on 26 and 27 November 2024.
The court granted an order on 28 November 2024.
The default judgment
[8] The applicant argued that the judge, had she known certain facts, would not
have granted the order. These facts were that the respondents' legal representatives
did not know the matter had been scheduled for a hearing on 28 November 2024. The
applicant had informed the respondents' attorneys that it had briefed Advocate Louw
SC , to represent it at the hearing of the main procedures and had requested that a
hearing date be arranged between the two senior counsel. It was evident, so it was
argued, that the applicant was unaware that the matter had already been scheduled.
It was contended that the respondents sent an email after business hours the day
before the hearing, which the applicant only saw too late to arrange counsel to attend,
explain the facts, and request a postponement to give the applicant a chance to
present its case in the main proceedings.
[9] The applicant contended that, had the presiding judge been aware of the facts,
she would, in fulfilling her duty to ensure a fair process, not have issued the order but
instead would have issued a fair and just order to ensure effective audi alteram partem
in the main proceedings where answering papers had been filed. She could have
ordered the matter to be deferred for an hour, postponed it for a week to allow the
respondents to notify the applicant of the delay, or refused to grant an order.
[1 O] The applicant argued that it was not in willful default for failing to deliver its
heads of argument or appear before the court on 28 November 2024, as the
respondents' legal representatives were unaware that the main proceedings were
respondents' legal representatives were unaware that the main proceedings were
scheduled for that date. It had a bona tide defence and prospects of success. It relied
on the immunity provided under the Foreign State Immunities Act 87 of 1981 (the Act),
and the procedural privilege in s 14, which prohibited the enforcement of any order
against the applicant's property. As a friendly foreign state, the court has no jurisdiction
to hear this matter because it cannot issue an effective judgment as outlined in s 14
5
of the Act. The status of the first applicant had not been established. Enforcing the
arbitrary award in question would be against the public policy of the Republic, as there
are ongoing proceedings (which predate this application) in the Lesotho High Court
testing the validity of the arbitral award.
[11] The respondents pointed out several inconsistencies in the founding affidavits
and noted that the judge was informed of the circumstances leading to the applicant's
absence on 28 November 2024. They acknowledged the exchange of correspondence
between the applicant's attorneys and Advocate Louw SC's secretary on 22 November
2024. They stated that on 21 November 2024, when the applicant's advocate inquired
about the respondents' heads of argument being due, the attorneys should have been
able to advise him, as they should have known the hearing· date. The document
bundle, including the notice of set down and the respondents' practice note, was
paginated by the applicant's Lesotho legal representative according to the amended
index and shared with its attorney and Advocate Louw 's secretary. The first entry on
the amended index listed the hearing date as 28 November 2024.
[12] The respondents acknowledge receiving the applicant's letter dated 25
November 2025, in which he informed them that Advocate Louw had been briefed to
appear at the hearing. The letter suggested that a suitable date be agreed upon by the
respective counsel, after wh ich steps would be taken to schedule the matter. The
respondents' attorneys received this letter on 26 November 2024, at 3h32, and
forwarded it to their instructing attorney on 27 November 2024. The instructing
attorney stated that he was traveling from Johannesburg to Bloemfontein for the
hearing at the time but responded to the letter the same day at 17h06. In its reply, the
respondents indicated that it was unclear whether the applicant was seeking a
postponement of the application and, if so, on what grounds. They confirmed that the
postponement of the application and, if so, on what grounds. They confirmed that the
matter would proceed as scheduled and reserved their rights concerning any
postponement that might be requested.
The transcript and additional affidavits
[13] It is clear from the transcript that at 11 h31 , Advocate Daniels informed the
court that Mr Chris Edeling, who appeared in the Lesotho Court and not in this
application, and with whom he had extensive dealings, told him that morning that they
6
seemed to have missed the notice of setdown and that they would need to seek a
postponement and tender costs. He told Mr Edeling that this was a matter to be
handled between their respective attorneys. Advocate Lauw SC was a colleague and
sat in the same group as he did. Neither he nor Miss De Villiers-Golding had heard
anything from him. They were not willing to agree to a postponement that had not yet
been requested. He argued that there was no reason why the order could not be
granted.
7
[14] Mr Edeling, in a supporting affidavit, confirmed that on 28 November 2024, he
exchanged several WhatsApp messages with Advocate Daniels, as shown in the two
screen shots attached to his affidavit. The messages started at 11 h01 and ended
shortly after 12h17. At 11h17, he asked Advocate Daniels to 'advise the court that our
SC was not told of the date?' Advocate Daniels said that the correspondence would
obviously be disclosed. He was also informed that Advocate Louw had obtained the
respondents' documents but missed the set-down because the respondents' practice
note stated the matter was scheduled for 28 November , which they all missed. They
needed to tender the costs of postponement and would ask Stephan to advise the
respondents' attorney. Advocate Daniels' response was 'yes. I'm not in a position to
deal with this on my feet. Chris'. At 12h17, he received a message saying the order
was granted at approximately 11 h45.
[15] The respondents stated in the answering affidavit that the applicant attempted
to reinforce its case for rescinding the judgment by using the transcript, which was an
improper second effort on the same issue. The WhatsApp messages were revealing.
The first message was sent at 11 h02. It indicated that the letter of 25 November 2024
was written because, by then, the respondent already knew that the application was
scheduled for 28 November 2024. The transcript and the messages did not aid the
respondent. They demonstrated that the respondents' reasons for rescission were
respondent. They demonstrated that the respondents' reasons for rescission were
unfounded.
[16] The respondents' counsel argued that all served processes were fully
disclosed, including their contents, as well as all exchanged communications,
including those between him and Mr Edeling. None of the applicants' legal
representatives had contacted Advocate Louw SC. At the time of the hearing and the
granting of the order, all the applicants' legal representatives knew that the case was
proceeding in court and deliberately chose not to appear.
[17] In response, the applicant argued that the respondents' counsel was aware
that their counsel was unaware that the matter was in court. Instead of informing the
court accordingly, the respondents' counsel claimed that the applicant, including its
counsel, Advocate Louw , must have known the hearing date, describing the letter of
the 25th as peculiar. He did not correct the judge's impression that Advocate Louw
was aware of the hearing and had deliberately chosen not to attend. The counsel knew
that the judge was mistaken, and he should have spoken up.
[18] The applicant referenced the record where the judge stated, 'And Adv Louw
has been instructed to appear and here is just. .. '. The applicant explained that the
judge was interrupted by the respondent's counsel, who did not correct the judge's
impression that Advocate Louw 'has been instructed to appear and apparently chose
not to do so. The respondent failed to bring to the court's attention the fact known to
him and argued the probabilities as if Advocate Louw was aware of the set-down. This
was a nondisclosure of a relevant fact.
Analysis and the law
[19] Uniform rule 42(1 )(a) states that the court may , in addition to any other powers
it has, mero motu or upon the application of any affected party, rescind or vary an
order or judgment that was mistakenly sought or mistakenly granted in the absence of
any affected party. In Zuma v Secretary of the Judicial Commission of Inquiry into
Allegations of State Cap ture, Corruption and Fraud in the Public Sector Including
Organs of State and Others (Zuma),1 the court explained that the main issue for
determination was whether a procedural irregularity was committed when the order
was issued. In Freedom Stationery (Pty) Limited and Others v Hassam and Others,2
the following was stated:
the following was stated:
'[25] As I have said, when an affected party invokes rule 42(1 )(a), the question is w hether
1
Zum a v Secretary of the Judicial Commi ssion of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including Organs of State and Others (2021] ZACC 28; 2021 (11) BC LR
1263 (CC ) (Zuma) para 59.
2
Freedom Stationery (P ty) Limited and Others v H assam and Others (2018] ZA S CA 170; 2019 (4) SA
459 (SC A) para 25.
8
the party that obtained the order was 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 ma y be granted in their absence. The relief need not necessarily be
expressly stated. In my view it suffices that the relief granted can be anticipated in the light of
the nature of the proceedings, the relevant disputed issues and the facts of the matter. In this
regard it would be useful to enquire whether the relief could have been granted without
amendment of the process in question. If so, the failure of an affected litigant to take steps to
protect his interests by joining the fray ought to count against him. I agree with what Didcott J
said in Ex parte Ma son 1981 (4) SA 648 (D) at 651C- D , namely:
"The creditor who is not a character from some fairy tale protects his interests by keeping in
touch with the application's progress and, once his opposition to it is serious, by joining the
fray. On the advertised date he appears or is represented in Court, to discover for himself
whether the proceedings will be abandoned . If he has held back his affidavits in the meantime,
he will have no difficulty in defending his caution and, should the case continue, in persuading
the Court to allow him the opportunity to file them after the security is furnished."
In circumstances such as these, a party who did not oppose or participate in the proceedings
would not be entitled to relief under rule 42(1 )(a). This is not only logical and fair, but accords
w ith the fundamental principle of finality of litigation.'
[20] In Chetty v Law Society, 3 it was stated that under common law, the Court has
the authority to rescind a judgment obtained by default of appearance if sufficient
cause has been shown which involved two key elements: (1) the party seeking relief
cause has been shown which involved two key elements: (1) the party seeking relief
must provide a reasonable and acceptable explanation for their default, and (2) that
on the merits, the party has a bona fide defence which, prima facie, has some prospect
of success. It is not enough if only one of these conditions is met; for obvious reasons,
a party with no prospect of success on the merits will fail in a rescission application of
a default judgment against them, regardless of how reasonable and convincing their
explanation for default is. Moreover, judicial process would be undermined if, on the
other hand, a party who provides no explanation other than disdain for the rules is still
allowed to have a judgment against them rescinded simply because they have a
reasonable prospect of success on the merits. In some cases, when the question of
whether a defendant's explanation for default is finely balanced, the fact that their
proposed defence has reasonable or good prospects of success might sway the
3 Chetty v Law Society 1985 (2) SA 756 (A ) 7658-F.
9
decision in their favour for rescission. However, this does not mean that the greater
the prospects of success, the more lenient the Court will be regarding the explanation
of their default.
[21] The applicant, supporting its case based on Rule 42(1 )(a), relied on Zuma ,4
and Mi-Tax (Ply) Ltd v National Printing & Publishing Trust (PTY) Ltd (Mi-Tax).5 In
Zuma ,6 it was stated:
'Ultimately, an applicant seeking to do this must show that the judgment against w hich they
seek a rescission was erroneously granted because "there existed at the time of its issue a
fact of wh ich the Judge w as unaw are, w hich would have precluded the granting of the
judgment and which would have induced the Judge, if aware of it, not to grant the judgment".'
[22] In Mi-Tax,7 it was stated that:
'For the same reasons, there is in m y view a legal duty on a litigant who mo ves an application
for default judgment to disclose to the court certain relevant information in the possession of
the litigant but not available to the presiding judge if the disclosure of such information might
reasonably lead the judge to refuse, postpone or stand dow n the application. If the content of
such information, when disclosed after the judgment, is relevant to the decision under rule
42(1 )(a), then it must follow that there is a duty to disclose it when the application for default
judgment is moved. The precise ambit of this duty may be difficult to anticipate and I shall not
try to do so but the practical difficulty of identifying circumstances which call for disclosure
should not be over-emphasised. This duty of disclosure is honoured by counsel every day in
the unopposed motion courts of this division and indeed these courts could not function
properly if this were not so. '8
[23] The respondent argued that the applicant's position was flawed because the
court was informed that the applicant's representatives apparently missed the notice
of set-down . The transcript showed that the Presiding Judge was aware of all the
of set-down . The transcript showed that the Presiding Judge was aware of all the
relevant facts. According to Ms Coop er's account, the applicant was in willful default.
What the respondent's counsel overlooks is that, based on the WhatsApp messag es,
4 Zuma fn 1 above.
5 Mi-Tax (Pty) Ltd v Na tional Printing & Publishing Trust (Pty) Ltd 2010 JDR 0067 (GNP ) (Mi-Tax).
6 Zum a para 62.
7 Mi-Tax para 34.
8 See also Fanang D iatla Business Enterprise & Co nstruction CC and A nother v Mak atsuka Civils and
Construction CC (9978/2023) [2025] ZAL M P PH C 112 (9 June 2025).
10
he failed to tell the court that Mr Edeling had asked him to notify the court that Advocate
Lauw was unaware of the hearing date.
[24] On 3 December 3, before applying for rescission, the applicant requested the
reasons related to the court order issued on 28 November 2024, as they planned to
apply to set aside the order. If the application to set aside the order was dismissed,
the applicant intended to seek conditional leave to appeal the order. The registrar
informed the applicant by letter dated 12 December 2024, that the request for reasons
had been handed to Judge Van Rhyn for her consideration. The default judgment was
granted following the letter dated 25 November 2024, addressed to the respondents'
representatives and presented at the hearing. The case was stood down and only
reconvened around 12h30 because Advocate Lauw SC did not appear in court on
behalf of the applicant. Consequently, no reasons for judgment by default would be
provided by Judge Van Rhyn.
[25] It is therefore clear that the presiding officer was troubled by the absence of
the applicant's counsel on the hearing date. I believe that failing to inform the court
that Advocate Lauw was unaware of the hearing date, as requested by Mr Edeling,
was significant, and this omission influenced the court's decision. In my opinion, the
application based on rule 42(1)(a) should succeed. If I am mistaken, then the
application should still succeed under common law for the reasons outlined below.
[26] It is not disputed that Advocate Louw may have missed the hearing date, but
he had completed all preparations to ready the main trial. Ms Cooper's evidence is
that she became aware of the respondents' letter on the day of the hearing of the
application. She did not have the right to appear, but had informed her team members
about the matter pending in court that morning. She arranged for Ms Streso, an
attorney qualified to appear in court, who spoke to Mr Jeffrey around 12h00,
attorney qualified to appear in court, who spoke to Mr Jeffrey around 12h00,
expressing her willingness to appear and request a postponement, which would
include paying wasted costs. These efforts to secure a postponement failed, as
Mr Jeffrey informed her at 12h15 that the default judgment had already been granted.
[27] The notice of set down did not come to her, Mr Redelinghuys', or Advocate
Louw's attention before 28 November 2024 because it was stapled to the back of the
11
respondents' index, which was delivered on 30 October 2024. Before that index could
be circulated to other members of the legal team, an amended consolidated index was
delivered on 1 November 2024, without any notice of set down attached. The amended
consolidated index was circulated to her team because she saw no need to send the
initial index, which was replaced by the amended one. Nothing indicated to her that
the notice of set down was stapled to the back of the initial index.
[28] Although the amended index listed the notice of set down as the first item, she
understood it would be inserted and paginated according to the amended index once
the notice of set down was received. She did not realise that the set down was already
in her possession, stapled to the back of the initial index that the amended index had
replaced. Had she known about the notice of set down , she would have immediately
sent a copy to Mr Redelinghuys, who would then have included it in the brief to
advocate Louw .
[29] In De Wet and Others v Western Bank Ltd (De Wet),9 it was stated that under
common law, the court's discretionary power tends to be influenced by considerations
of justice and fairness, taking into account all the facts and circumstances of each
case. The burden of proving sufficient grounds for relief rested on the applicant in
every case, and they had to satisfy the Court, among other things, that there was a
reasonably satisfactory explanation for why the judgment was allowed to go by default.
The Court's discretion under common law went beyond, and was not limited to, the
criteria specified in rules 31 and 42( 1), as well as those explicitly mentioned in
the Childerley Estate Stores v Standard Bank of SA Ltd, 10 case (fraud, justus error or
exceptional circumstances). Those criteria do not, for example, cover situations where
a litigant or their legal representative defaults due to unforeseen circumstances
beyond their control, such as sudden illness or other unforeseen misadventures; many
beyond their control, such as sudden illness or other unforeseen misadventures; many
scenarios exist where both logic and common sense would support that a defaulting
party should, as a matter of justice and fairness, be granted relief.
[30] Unlike the circumstances in Oe Wet , 11 the applicant sent a letter to the
9
D e W et and Others v We stern Bank Ltd 1979 (2) SA 1031 (A) (D e W et) at 1042H .
1° C hilderley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163.
11 De Wet .
12
respondents to arrange a hearing date before the scheduled time. A response was
received on the morning of the hearing, and both Ms Cooper and Mr Edeling did not
sit on their laurels; they made efforts to secure a postponement. The applicant's
attorneys made errors related to the enrolment of the application. However, I do not
believe that, given the circumstances described in the papers, their behaviour can be
considered a flagrant and gross violation of the rules. It cannot be said that the
applicants' attorneys or representatives acted wilfully, as a span of a few hours does
not constitute flagrant behaviour. The principle is that all matters should be brought to
a final resolution.
[31] Having listened to the parties' submissions on all the facts, I allow the
additional affidavits into evidence. I have considered all the relevant facts and
circumstances and am of the view that, on common law principles, it would be fair and
just to exercise my discretion in favour of the applicant to grant the relief sought.
[32) The following order issues:
The application succeeds and the costs are to be costs in the main application.
JUDGE OF THE HIGH COURT
13
14
Appearances
For the appellant: P F Louw SC
Instructed by: Coopers & Associates Inc.
For the respondent: A J Daniels SC
Instructed by: Mcintyre Van Der Post Inc.