CIV\APN\348\88
IN THE HIGH COURT OF LESOTHO
In the matter between:
LEHLOHONOLO KHOBOKO Applicant
and
BARCLAYS BANK AND ANOTHER Respondent
JUDGEMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 31st day of May. 1993
This is an application for an order in the following terms:.
An order of stay of execution pending the finalisation of the application;
That the Warrant of Execution re-issued on the 11th day of October, 1988 be set aside and the judgment obtained therein be rescinded;
Dispensing with the periods for service of . this application on the ground of its urgency;
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That the Respondents be ordered to pay the costs of this application.
The facts of this case are that the first respondent instituted an action against the applicant in CIV\T\29\85. In fact at the time CIV\T\29\85 was instituted there were two other cases instituted at the same time, namely, CIV\T\270\85 and CIV\T \86\85. It is common cause that CIV\T\270\85 was withdrawn and at CIV\T\586\85 which was an application for provisional sentence was dismissed on the 28th November, 1985.
CIV\T\29\85 was not withdrawn and a default judgment was granted in February, 1985. It is common cause that the applicant was personally served with the summons.
It is also clear that the Deputy Sheriff also served a writ of attachment on the applicant personally on the 23rd April, 1985 (See Annexure "E" to the replying affidavit).
Rule 27(6) (a), (b) and (c) of the High Court Rules 1980 reads as follows:
Where judgment has been granted against defendant in terms of this rule or where absolution from the instance has been
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granted to a defendant, the defendant or plaintiff, as the case may be, may within twenty-one days after he has knowledge of such
judgment apply to court, on notice to the other party, to set aside such judgment.
The party so applying must furnish security to the satisfaction of the Registrar for the payment to the other party of the costs of the default judgment and of the application for rescission of such judgment.
At the hearing of the application the court may refuse to set aside the judgment or may on good cause shown set it aside on such terms including any order as to costs as it thinks fit.
Mr. Geldenhuys, Counsel for the first respondent, submitted that to fall within the ambit of the above Rule the applicant must show that his application was launched within twenty-one days after he has knowledge of the judgment. In the applicant's founding affidavit all that the applicant says is that his then attorneys of record became negligent in not defending the action had that the judgment was obtained behind his back.
