Now, in a filed rescission application dated June 11, 2024, they seek leave to defend the main action blaming the non appearance during scheduled set down of the matter to an honest mistake that resulted from Justice Kebonang’s switching courts. In an affidavit deposed by Tsoebebe Mokhosoa, employed by the DIS as the Director of Corporate Services, he explains that non appearance and or late appearance in court by the substantive attorney was not owing to any negligence or disobedience of the court but rather to the honest mistaken error. “This was owing to the fact that she had gone to Broadhurst Magistrate’s Court as usual and did not know that the judge was not sitting in Broadhurst during that fateful day,” he said. Mokhosoa stated that reasons for seeking rescission of the default is that they had filed the plea timeously in the matter and that the default order was done erroneously as there is no rule in the Rules of the court that provides for granting of default judgment. He explained that the non appearance or late arrival in court in the situation was not on account of disrespect to the court or utter neglect of the rules of the High Court, but rather out of the unfortunate mistaken turn of events. On grounds for rescission and prospects of success, Mokhosoa said both parties’ position is that the judgment and the order were entered in favour of the applicants as a result of the unfortunate sequence of events. “The judge had an option of ordering wasted costs for that day and postponing the roll call or setting the matter for status hearing as the parties had already filed their relevant papers,” he said.

He further emphasised that the officers will not suffer any prejudice as they will have an opportunity to be heard, when the matter proceeds to the hearing and arguments being presented by parties, with the judge deciding whether they are entitled or not. Mokhosoa mentioned that the default judgment awarded by Justice Kebonang will greatly prejudice the applicants as they will not have an opportunity to prove their case at all. “Should the judgment not be rescinded, the officers will be unjustly enriched as they are not entitled to the claims they were granted in default of non appearance. The said non appearance or late appearance by the substantive attorney was not owing to any negligence or disobedience of the court but rather to the mistaken turn of the unfortunate events,” Makhosoa said. Mokhosoa further on their defence said the officers had failed to plead before the court on how in terms of their contract they are entitled to payment of all other claims in their papers.