HIGH COURT OF LESOTHO
FRANCIS LEHOLA Applicant
NOBELUNGU MTHEMBU lst Respondent
MALICHABA RIKINE 2nd Respondent
OF THE HIGH COURT 3rd Respondent
by the Honourable Mr. Justice J.L. Kheola on the 4th day of june,
8th May, 1993 the applicant launched an ex parte application and was
granted a Rule Nisi in the following terms:
a Rule Nisi be and it is hereby issued returnable on the day May
1993, calling upon the Respondents to show cause why:-
of this Honourable Court granted on 1st February 1993 in
CIV\APN\38\93 shall not be rescinded.
sheriff shall not be ordered to restore possession of Thabong Garage
and Mthembu Hotel to Applicant.
Applicant shall not be allowed to file opposing affidavits in
periods of notice required by the Rules of Court be dispensed with
on account of the urgency of this matter.
1. (b) apply with immediate effect.
on Attorney client basis.
or alternative relief.
made returnable on the 24th May, 1993. However, the first respondent
anticipated the return day and the matter was argued
before me on the
18th May, 1993.
29th January, 1993 the applicant was served with a provisional
sequestration order in terms of which he was called upon to
cause on the 15th February, 1993 why his estate
not be sequestrated finally. This order was made under case number
CIV\APN\39\93. The applicant was served personally with
provisional order of sequestration. He did not file a Notice of
Intention to oppose the application as required in terms of
8(10) of the High Court Rules 1980; nor did he show cause as required
in the provisional sequestration order.
order of sequestration was granted on the 8th March, 1993.
paragraph 7 of his founding affidavit the applicant avers that the
final order of sequestration was made on the 15th February,
though his lawyer Mr. Mofolo was present in Court and drew the
Judge's attention to the existence of CIV\APN\57\95 which was
from the office of the Registrar on the 12th February, 1993, i.e.
before the final order of sequestration was made on the
It is not
correct that the final order was made on the 15th February, 1993 it
was in fact made on the 8th March, 1993.
transpired in Court on the 8th March, 1993 is that Dr. Tsotsi, the
first respondent's attorney, stood up when his case was
moved the application for a final order of sequestration which was
not opposed. The application was granted
final order was made. Immediately after that Mr. Mofolo stood up and
said he had filed opposing papers. I pointed out to
him that there
were no such papers in the Court's file. I advised him to sort out
this matter with the Registrar and find out what
had happened to his
Mofolo's behaviour or reaction on that day leaves much to be desired.
He did not say anything when Dr. Tsotsi moved the application.
waited until the court had pronounced its judgment. There was nothing
I could do to the judgment I had just pronounced and all
applicant could do was to apply for its rescission.
It is not
correct that Mr. Mofolo had filed any opposing papers in the
sequestration application. It has turned out that on the
February, 1993 the applicant launched an application under case
number CIV\APN\57\93 in which he prayed for stay of execution
judgment in CIV\T\369\92 and rescission of judgment in CIV\T\551\92.
refused to grant a Rule Nisi and ordered that the papers in
CIV\APN\57\93 be served upon the respondent and that the matter
set down in the normal way. It will at once be seen that
CIV\APN\57\93 had nothing to do with the application for the
order in CIV\APN\39\93.
paragraph 9-1 of her opposing affidavit the first respondent deposes
that both cases, i.e. CIV\T\369\92 and CIV\T\551\92 are
and that if they do exist they have nothing to do with her. She
deposes that CIV\APN\57\93 though launched on the
12th February, 1993
as an ex parte application does not appear to have been moved until
the 18th March, 1993, ten days after the
final order of sequestration
had been made.
(6) of the High Court Rules 1980 provides that -
judgment has been granted against defendant in terms of this rule
or where absolution from the instance has been granted
defendant, the defendant or plaintiff, as the case may be, may
within twenty-one days after he has knowledge of such
apply to court, on notice to the other party, to set aside such
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
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
including any order as to costs as it thinks fit.
common cause that the applicant had knowledge of the final
sequestration order on the 8th March, 1993 but took no steps to
it rescinded within twenty-one days after he had such knowledge. He
has given no satisfactory explanation why he and his attorney
act within the time prescribed by the Rules of Court. He has provided
no good reason why the Court should depart from the
that the Court having granted a final order of sequestration is
functus officio. It has itself no authority to
correct, alter or
supplement its order.
summary judgment in CIV\T\368\92 was obtained on the 21st September,
1992. The applicant became aware of this judgment but he
does not say
when he had knowledge of that judgment. It is the duty of an
applicant for rescission of a default judgment to take
the Court into
his confidence and tell it when he had knowledge of the judgment. The
Court will then be in a position to decide
whether there was
inordinate delay in taking steps to have it rescinded. It shall also
there is good cause.
events which led to the granting of the summary judgment in
CIV\T\368\92 are that in terms of clause 5 of the Deed of Sale
entered into by and between the parties a copy of which is annexed to
the applicant's founding affidavit, the applicant was required,
signature of the agreement, to deposit with the respondent proof of
assignment to himself of a certain mortgage bond to a
exceeding M300,000-00 as part of the purchase price and to pay off
the balance of the purchase price in instalments ranging
to M5000 per month. Applicant failed to fulfil these conditions and
on the 21st July, 1992 the respondent had a summons
him for performance of the contract in CIV\T\368\92.
applicant entered an appearance to defend whereupon the respondent
applied for summary judgment which was granted on the 21st
1992. The applicant was ordered to deliver the Deed of Assignment or
alternatively to pay M300,000-00 and instalments
of M3000 per month
from the 31st January, 1992 to the 30th June, 1992 and M5000 per
month, thereafter until liquidation of the
debt. The applicant was
ordered to pay interest and coats. In pursuance of the judgment the
respondent had a writ issued against
the applicant for M412,800 plus
It was in
the execution of this writ that the Deputy Sheriff made a nulla bona
return on the basis of which sequestration proceedings
instituted. No attempt was ever made to have the summary judgment set
aside nor to have the sequestration order rescinded.
respondent has proved all the requirements under section 12 of the
Insolvency Proclamation No51 of 1957. He has proved
that he has a
liquidated claim larger than M100; that the applicant has committed
an act of insolvency or is insolvent; and that
there is a reasonable
possibility that it will be to the advantage of the creditors if the
estate is sequestrated.
Sooknanan, attorney for the applicant submitted that the Deed of Sale
upon which the judgment in CIV\T\368\92 was based is null
and void on
the ground that the Minister's consent was not obtained in terms of
section 35 (1) of the Land Act 1979. He referred
to the case of
Mohale and another v. The Commissioner of Lands 5 Surveys &
others, C. of A. (CIV) No. 12 of 1987 (unreported)
in which Trengove,
J.A. said at p.5:
"Secondly, First Appellant has neither alleged, nor shown, that
he sought or obtained the Minister's consent to the transfer
interest in the lease, in
terms of Section 35 (l)(b)(i), prior to entering into the agreement
with Second Appellant. This was essential because Section 36
provides, as I have already mentioned, that any transaction conducted
without the consent of the Minister shall be of no effect.
finally, even if there may be some evidence in the papers that First
Appellant had endeavoured to obtain the Minister's consent
agreement with Second Appellant had been concluded, there is no
allegation in the Appellants' affidavits, nor is there
whatever, that the Minister withheld his consent unreasonably. On the
contrary, on the available information that
Minister appears to have
acted fairly and reasonably in this matter."
I am of
the view that in the instant case the decision mentioned above must
be followed. The parties in the present case actually
signed the Deed
of Sale and the applicant took occupation of the property before the
first respondent sought or obtained the Minister's
consent in terms
of section 35 (l)(a)(i) of the Land Act 1979.
question is whether a contract entered into contrary to the
provisions of section 35 can be enforced by the courts of law.
answer must be in the negative because section 36 (5) of the same Act
provides that any transaction conducted without the consent
Minister shall be of no effect. The first respondent cannot force the
applicant to perform the provisions of a contract
that is contrary to
the law. That does not mean that parties do not have actions against
each other under unjust enrichment. That
is for their lawyers to
result the rule is confirmed in terms of prayers 1 (a) and (b) with
Applicant - Mr. Sooknanan
Respondent - Dr. Tsotsi
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