CIV/APN/232/83 CIV/T/220/52

IN THE HIGH COURT OF LESOTHO In the Application
of :

SEKHOBE
SEHAHLE Applicant v

1. FEDMARK(MATATIELE)(PTY))

LTD )
Respondents

2. J.
LEHLOKA )

JUDGMENT

Filed by the Hon. Chief Justice, Mr. Justice T.S. Cotran
on the 19th day of December

1983

The 5th December 1983 was the extended return date for A
rule nisi granted to the applicant Sekhobe Sehahle by Kheola
AJ calling upon the 1st respondent

(Pty)Ltd and 2nd respondent L. Lehloka (the deputy
sheriff) to show cause, inter alia, why

1. 
   a default judgment entered in favour of
   1st
   respondent and plaintiff in Civil Trial
   220/1982 not be set
   aside,

   
   

2. 
   a stay of execution of the goods of the
   applicant
   attached in accordance with a
   writ issued by the 1st respondent
   and
   plaintiff in the above trial should not
   be granted.

   
   

The applicant is the owner of a business known as
Douglas Store and it was common cause that the 1st respondent/
plaintiff had supplied
and delivered goods to the applicant in the
course of business dealings. In the civil action above referred to
the 1st respondent
and plaintiff claimed M3772.92

/in respect

-2-

in respect of goods sold and delivered and unpaid for in
1981. It was not seriously challenged that the applicant and
defendant did
not receive the summons and I have little doubt that he
did. Judgment was entered before Rooney J on the 23rd August 1982.
The 1st
respondent/plaintiff proceeded to execution,
applicant/defendant's goods were attached, and a bill of taxation of
costs was filed
In the normal way.

Over a year after these events the applicant/defendant
now swears that he does not in fact owe this sum to the 1st
respondent/plaintiff,
that not only had he settled all amounts owed
but on the contrary had overpaid the 1st respondent/ plaintiff
M2592.12.

Mr. Koornhof submits that rescission of a default
judgment cannot be heard unless security for costs has been Garnished
to the satisfaction of
the Registrar in terms of Rule 27(6)(b) of the
High Court Rules and as this had not been done the application is
ipso facto incompetent.

Mr. Maqutu submits that his application is based
not on Pule 27 but on Rule 45 because the Court has power, moru
motu. to vary or rescind a judgment entered as a result of a
"mistake common to both parties". Under this Rule no
security
need be furnished.

Mr. Koornhof submits there was no error "common
to both parties".

The papers submitted by the applicant/defendant disclose
that his accountant had told him that when checking

his accounts with the 1st respondent/plaintiff he, the
accountant, had discovered a mistake in favour of the applicant which
makes
him a creditor,not a debtor in the sum of M3772.92, The
accountant himself however submits no affidavit to this effect and
what I
have before me are photocopies of bank statements, cheques,
and endorsements thereof (on the front and back) and receipts in
which
the names of two companies

/appear

-3-

appear which seem to have been operated by the same
management.

It is impossible, without hearing evidence, to grant
this application. I accordingly propose to dismiss the application
unless :-

3. 
   The applicant pays into Court the principal
   amount
   of the Judgment debt, i.e. without
   costs, or

   
   

4. 
   Furnishes the Registrar with security in
   the nature
   of a bank guarantee for payment
   of the above sum should it be
   established
   that the 1st respondent/plaintiff was right
   and
   the applicant/defendant and/or his
   accountant are wrong.

   
   

If the applicant/defendant is able to do either the
attachment of applicant's goods will be lifted to enable him to catch
the Christmas
trade which he says he is anxious to do before he is
ruined. In such an event the default judgment will be rescinded and
the case
will be set down for hearing after a pretrial conference on
the present papers forming the pleadings. If not I am prepared to
hear
viva voce evidence on 17th January 1984 during the
Court's vacation. The onus of proof will be on the
applicant/defendant.

The applicant to pay the costs of this application.

Will the Registrar please supply a copy of this Judgment
to the attorneys of both parties.

CHIEF
JUSTICE 19th December 1983

For Applicant : Mr. Maqutu For Respondent: Mr. Koornhof