CIV/APN/183/87

IN THE HIGH COURT OF LESOTHO
In the
matter between:-

RAPHAEL
RAMALIEHE KALI Applicant

and

SAMUEL 'MELI HLABANYANE Respondent

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 14th day of September, 1989

This is an application for rescission of the order of
this Court which was granted on the 17th June, 1988. This

order was granted on the basis of a deed of settlement
signed by the parties' attorneys on the 17th June, 1988.

At the hearing of this application, Mr. Khauoe,
applicants attorney, failed to appear and Miss Tau, counsel
for the respondent decided to argue the matter and to apply that the
matter be dismissed with cost on the points she intended
to raise in
limine. It must be put on record that Mr. Khauoe was
present within Court premises at about 10.00 a.m. to-day. I received
a message from him in chambers that he asked that the matter
should
stand down for five

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minutes because he was going to pay security for costs
in terms of Rule 27 (6) (b) of the High Court Rules 1980. He did not
come back
until about thirty minutes later when Miss Tau decided
to proceed.

Miss Tau submitted that the application should be
dis­missed for failure to comply with Rule 27 (6) (b) in that the
applicant has not
furnished any security to the satisfaction of the
Registrar for payment of costs.

Rule 27 (6) (b) provides that '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.

It is common cause that the applicant has not furnished
any security for costs and that it was only this morning that
attempts were
being made to pay the amount fixed by the Registrar.
The attempt did not materialise until Miss Tau decided to
proceed in the absence of Mr. Khauoe. The Court had no choice
in the matter because Mr. Khauoe had requested only five
minutes. In any case payment of security for costs of the judgment
and of the application must be made when
the appli­cation for
rescission is lodged with the Registrar.

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In Phillip Mosae v. Lesotho Agricultural Development
Bank CIV/APN/96/84 (unreported) it was held that the
provisions of Rule 27 (6) (b) are mandatory and the applicant's
failure to comply
with them would be fatal to the application.

I have come to the conclusion that on that ground alone
the application must be dismissed and it is accordingly so dismissed
with
costs.

JUDGE
14th September, 1989.

For the Applicant - Mr. Khauoe
For the Respondent
- Miss Tau.