CIV/T/498/01

IN THE
HIGH COURT OF LESOTHO

In the
matter between

'M'ABERENG
PHASUMANE APPLICANT

vs

LESOTHO
NATIONAL DEVELOPMENT

CORPORATION
1st RESPONDENT

MESSENGER
OF COURT 2NDRESPONDENT

JUDGEMENT

Delivered
by the Honourable Mrs. Justice K.J. Guni ________________On the 11th
day of November 2002_________________

The
applicant in this matter was a defendant in the main action. In that
main action, this 1st respondent was the plaintiff. The 1st
respondent is LESOTHO NATIONAL DEVELOPMENT CORPORATION - L.N.D.C.
Applicant /defendant was employed by LNDC. She worked for LNDC for a
period of approximately (20) twenty years. LNDC had staff housing
scheme

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policy.
In 1997, the applicant/defendant entered into a staff housing scheme
loan agreement with her employee LNDC. It was one of the terms of
that loan agreement that the employer must lend and advance the
applicant/defendant at her instance and special request, the sum of
(48,646.06) forty-eight thousands and six hundred and forty-six
lisente. This money was to be used for the purpose of purchasing plot
NO.11294 - 753 situated at THETSANE in Maseru Urban Area.

Repayments
of the said loan were to be effected by means of installments at the
rate of three hundred and eighty-four maloti and sixty-nine lisente
(384.69), for a period of fifteen (15) years and two months. Pursuant
to their agreement applicant/defendant authorized LNDC to deduct the
said monthly installments directly from her salary every month. As a
last condition precedent to this loan, applicant /defendant freely
and voluntarily pledged her terminal benefits arising out of her
employment with LNDC as security in-favour of LNDC - should her job
with LNDC be terminated.

Through
no fault of hers on the 31st July 2001 LNDC terminated this
applicant/defendant's employment because of and as a result of its
restructuring policies. Prior to her departure from LNDC she signed
an

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acknowledgment
of debt regarding the outstanding balance of her housing loan.
Applicant/defendant agreed to repay that balance by means of monthly
installments at the rate of (771.17) seven hundred and seventy-one
maloti and seventeen lisente. It is apparent that she did not fulfil
her obligations thereafter.

On 30th
November 2001, the respondent/plaintiff issued out of this court
summons against the applicant/defendant. In the said summons LNDC
demanded the payment of the outstanding balance in that housing loan
of this applicant/defendant. According to the applicant/defendant she
promptly consulted her counsel - one Mr MAHASE who advised her that
he will take steps to defend that action.(refer to the founding
affidavit of applicant at paragraph 5.1)

Indeed
Notice of INTENTION TO DEFEND was filed on 11th December 2001. On the
13th day of DECEMBER 2001 an application for summary judgement was
filed together with the supporting affidavit deposed to by one LETUKA
SEPHELANE who describes himself therein as a financial controller at
LNDC. He averred that he can swear positively to the facts contained
in the summons that the applicant/defendant is indebted to

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the
plaintiff/respondent as alleged. Reference was made to the loan
agreement and acknowledgment of debt copies of which are attached to
the summons.

The
Notice of Set Down for the hearing of this application for summary
judgment on the 25th day of March 2002 at 0930hours was served upon
an received by the attorneys of the applicant/defendant on the 19
March 2002. There was no appearance by the applicant/defendant and
her attorneys and/or counsel. Counsel for plaintiff/respondent
appeared before court and applied for default judgment in the absence
of the applicant/defendant. The applicant/defendant had not filed any
opposing papers against this application for summary judgment. On the
26 March 2002 the Writ of Execution was issued to attach movable
goods of this applicant/defendant.

According
to the applicant/defendant this writ was served upon her by the
deputy-sheriff on the 13th May 2002. The deputy-sheriff informed the
applicant/defendant that judgement had been entered against her and
that she was indebted to LNDC in the sum of twenty-eight thousands,
seven hundred and forty-two maloti and eighty-two lisente(28,742-82).
She claims that she

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was
surprised that judgment has been entered against her. Why? Because
she was not advised of the hearing date of the case. She does not
deny her indebtedness to LNDC.

It is her
further averment that, when she received the writ of execution she
panicked. In her condition she went to the offices of her counsel Mr
Mahase. She was unable to find him. Why? No reason is given. She then
consulted her present attorney of record who instructed her to obtain
withdrawal from Mr Mahase. Those are her exact words(see paragraph 8
founding affidavit)

She must
have been lucky as appears that she was able to find her counsel and
obtain the withdrawal as instructed by her present attorneys. She is
now represented by them, she strangely enough seems to suggest at
paragraph 9 of her Founding Affidavit that she came to learn from
present attorney that summary judgment was granted against her.
Earlier on at paragraph 6 of the same Founding Affidavit,
applicant/defendant had claimed that the messenger of court informed
her that judgment was taken against her and that she was indebted to
LNDC to the tune of M28,742.82. The fact of her indebtedness was not
new to her, he must have been well

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aware of
that fact. Why? Because she has referred to LNDC1 AND LNDC2 which are
the LNDC Staff Housing Scheme Loan Agreement and an acknowledgement
of debt, respectively. She does not deny signing both these
documents. She does not deny receiving the loan amount from LNDC. She
does not challenge the accuracy of the outstanding balance.

In terms
of clause 9 of the parties agreement, the full amount of the loan or
interest which remains unpaid on the due date becomes immediately due
and payable. LNDC is entitled to recover the same together with all
the costs and charges incurred in the recovery of the said amount.

It was on
the 13th May 2002 when this applicant/defendant was served with the
writ of execution. It was only on the 30th June 2002 that this
application was filed ex-parte and on an urgent basis. As a result,
an interim court order restraining the respondents from executing in
terms of that writ was issued. It is one of her prayers in this
application that the judgment obtained by LNDC against her be set
aside.

Once the
restraining order was obtained against the respondents,
applicant/defendant sat back and did nothing. That interim court
order

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lapsed.
She came back to court ex-parte again, applied for and was granted
the revival order. Again that interim court order was allowed to
lapse once more. The notes on the cover of the record show that the
rule Nisi was revived and extended each time it had lapsed without
any filing of a formal application. There are no reasons given why
the Rule Nisi was allowed to lapse not once but twice. There are no
reasons given for their revival everytime it was requested. This
appears to have happened as a routine without a cause.

The
Notice of INTENTION to oppose and an Opposing Affidavit were filed on
5th September 2002 and 10th September 2002 respectively. On behalf of
the respondent/plaintiff a point in limine has been raised. It is
submitted that the applicant/respondent should not have approached
the court as a matter of urgency and ex-parte. The matter was not
urgent.

In the
first place the application does not comply with the rules of this
court, which govern urgent application. Rule 8(22)(b), the relevant
portion of this rule provides as follows:

"In any petition or affidavit filed in support of an urgent
application, (l)the applicant shall set forth in detail the
circumstances which he avers render the application urgent and also
the (2)reasons why

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he claims that he could not be afforded substantial relief in an
hearing in due course if the periods presented by this Rule were
followed."(My numbering and underlining to highlight those two
requirements)

In the
Founding Affidavit there are no averments made as required in terms
of Rule 8 (22)(b). This rule requires the applicant in his or her
affidavit to set forth in detail circumstances which he or she avers
renders the application urgent. This applicant has set out in her
affidavit nothing of that kind. Furthermore, the applicant is
required to give reasons why she claims that he cannot be afforded
substantial relief in a hearing in due course. These two requirements
must be complied with in any affidavit filed in support of an urgent
application. LESOTHO UNIVERSITY TEACHERS AND RESEACHERS VS NUL. C OF
A (CIV) NO 13/98. COMMANDER OF LESOTHO DEFENCE FORCE AND A.G. VS
MATS'ELISO MATELA C OF A (CRI) NO 3/99 - C OF A CIV 504/98.

This is
an urgent application which was brought ex-parte accompanied by a
certificate of urgency issued by Advocate Metlae who claimed in the
said certificate amongst other things that applicant is likely to
suffer irreparable harm without any grounds to show how and when that
harm is to come by. By issuing this certificate for no good cause and
totally

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ignoring
the requirements set out in rule 8 (22)(b) this behaviour provided
the appropriate circumstances for awarding cost against the legal
practitioner. COMMANDER OF LDF(Supra). This application was moved
ex-parte and a Rule Nisi obtained, against the respondents on 19th
July 2002. It was returnable on the 3rd August 2002. It was revived
and extended on the 15th September 2002. The alleged nature of
urgency of this application became confirmed as faked because once
again the said rule was allowed to lapse. It was revived and extended
on the 15th September 2002. The expiry and revival of the said rule
Nile was taking place routinely. No formal application seemed to have
been made at any particular time. No reasons or any explanation was
given for this unbecoming behaviour of a legal practitioner. Despite
numerous appeals over many years by the highest court on the land,
that the practice of granting ex-parte court orders routinely must
stop, the practice continues without any question being asked the
legal practitioner requesting the same. Was there any justification
for the issuing, reviving and extending of this rule nisi ? None is
given. As a general rule as succinctly expressed by His Lordship Mr
Justice GAUNTLETT JA, IN THE COMMANDER OF LDF(SUPRA), basic
considerations of fairness and need to prevent the administration of
Justice being brought into

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disrepute
require appropriate notice to be given. Otherwise there must be
vigorous justification for proceeding ex-parte and on urgent basis.

After
obtaining the said Rule Nisi on the 30th June 2002 nothing was done.
The alleged urgency of the matter was thrown out through the window
of the offices of the legal practitioner handling this matter,
despite having issued the certificate of urgency. Days went by, weeks
went by, the rule nisi lapsed time and again. This clearly is an
indication of abuse of the process. The relaxed manner of the
handling of this matter clearly demonstrates that this is not an
urgent matter. Once a restraining order had been obtained ex-parte
against respondents there was nothing further to be done as far as
the applicant was concerned. But had the matter come to an end? The
answer is, no. The applicant might here wished, but wishes are not
horses. It is the 1st respondent who issued the notice of set down to
have this application heard so that the restraining order granted
against it without being given an opportunity to be heard may be
finally confirmed or discharged. It is definitely not fair to
approach the court ex-parte and obtain the restraining court order
against the respondent and then sit back and do absolutely nothing.
For none, compliance with the rule governing urgent applications,
this application must fail.

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The
applicant does not deny her indebtedness to the respondent/plaintiff.
She did not file opposing papers or appear at the hearing of the
application for summary judgement despite their acknowledgment of the
receipt of the Notice of Set Down for the same. In terms of the rules
the party and his or her legal representative are one. Mr Mahase
represented the applicant/defendant. Service upon him or his offices
is service upon her client. If the applicant has a complaint
regarding the manner in which her attorneys or counsel handled this
matter the best solution for her is to approach an appropriate
authority such as the Law Society. The failure to inform her about
the date of hearing by her counsel is not a ground to apply to set
aside the default judgment. The application has no merit.

Although
this application was brought ex-parte and as an urgent application,
it is in fact an application made in terms of rule 27(b) HIGH COURT
RULES, Legal Notice no 9 of 1980. It falls for determination under
this rule. The applicant in her founding affidavit at paragraph (7)
alleges that she was surprised to learn of the judgment against her.
Her counsel never informed her of the date of hearing nor anything
that matters

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default.
If this is the application that must be considered in terms of rule
27(b) High Court rules(Supra) it should have been filed on notice.
This application did not come before court on notice to respondents.
The party applying to have the judgment set aside must furnish
security to the satisfaction of the registrar for the payment to the
other party of costs of the default judgment. There is no averment
that such security was paid.

There is
no rule of this court that this application can be said to have
complied with. Therefore, it must fail. It is dismissed with costs.

K.J.GUNU

JUDGE

FOR
APPLICANT - MR. METLAE

FOR
RESPONDENT - MR. POOPA

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