HIGH COURT OF LESOTHO
BANK 1st Respondent
SHERIFF 2nd Respondent
Applicant: Sethatbi & Co.
Respondents: Mr. S.C. Buys
by the Honourable Mr. Justice T. Monapathi on the 19th day of
that the application ought to be dismissed with costs inasmuch as
Applicant/Defendant's Counsel did not prosecute it to an end.
Applicant applied for an order in terms whereof the execution
scheduled for the 2nd March 2001 was stayed. The Applicant further
applied for rescission of judgment and to be granted leave to defend
the proceedings instituted against him under CIV/T/250/00.
were filed in this Court against the Applicant who was Defendant on
the 25th August 2000. Judgment was granted by default on the 11th
September 2000 against the Defendant who had instructed Counsel with
a view to settle (as he admitted liability) to no avail.
quite clear that an application of this nature by the Applicant
should and should have complied with the provisions of Rule 27(6) of
the High Court Rules, which provides for time limits within which to
apply to set aside the given judgment, and the fixing of security.
Respondent contends in his opposing affidavit that the Applicant was
already aware of the judgment on the 4th October 2000 when a warrant
of execution against movable assets was served upon him. He responded
by simply informing the Deputy Sheriff that he does not have
attachable movable assets.
days has therefore expired within which the Applicant was supposed to
bring an application and in the circumstances the failure to do so
was fatal as I concluded.
addition thereto the Applicant has failed to comply with Rule
27(6)(b) in that no security has been furnished to the satisfaction
of the Registrar of the High Court for the payment to the First
Respondent of its costs for the default judgment. The furnishing of
security is mandatory and failure to do so is fatal to the
application. See Ramdaries v Mafaesa CIV/T/56/83 delivered on the
25th May 1983 by Cotran CJ.
also evidence before this Court, in the form of correspondence
between the Applicant's Attorneys, that the Applicant admitted
liability and offered to pay the debt by way of monthly instalments.
Because an agreement could not be reached in this regard the First
Respondent proceeded (as it was entitled to) with the execution
against immovable property. The First Respondent argued that there
was no good cause for the default judgment to be set aside as is
provided for in Rule 27(6)(c), which reads as follows:
"At the hearing of the application the Court may refuse to set
the judgment or may on good cause shown set it aside on such terms
including any order as to costs as it thinks fit."
Applicant did not show good cause on which the judgment may be
rescinded. This attitude was strengthened by the fact that the
Applicant has admitted liability.
would therefore be no sense in setting aside the judgment as there
would be nothing to try before this Court once the judgment was set
aside. This in my view would be waste of time and money where the
Applicant was not able to show that he had a bona fide defence to
First Respondent/Plaintiff's claim. See Grant v Plumbers (Pty) Ltd
1949(2) SA 470(0).
circumstances the application for rescission was dismissed with
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law