THE HIGH COURT OF LESOTHO
In the matter between:
THABO FRANCIS LEHOLA Applicant
GERTRUDE NOBELUNGU MTHEMBU let Respondent
MALICHABA RIKINE 2nd Respondent
SHERIFF OF THE HIGH COURT 3rd Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 4th day of June, 1993
On the 8th May, 1993 the applicant launched an ex parte
application and was granted a Rule Nisi in the following terms:
1. That a Rule Nisi be and it is hereby issued
returnable on the day May 1993, calling upon the Respondents to show
(a) Order of this Honourable Court
granted on 1st February 1993 in
CIV\APN\38\93 shall not berescinded.
The sheriff shall not be orderedto restore
possession of ThabongGarage and Mthembu Hotel toApplicant.
The Applicant shall not beallowed to file
opposingaffidavits in CIV\APN\38\93.
The periods of notice required bythe Rules of Court
be dispensedwith on account of the urgency ofthis matter.
Prayer 1. (b) apply with immediate effect.
Costs on Attorney client basis.
or alternative relief.
It was made returnable on the 24th May, 1993. However,
the first respondent anticipated the return day and the matter was
me on the 18th May, 1993.
On the 29th January, 1993 the applicant was served with
a provisional sequestration order in terms of which he was called
show cause on the 15th February, 1993 why his estate
should not be sequestrated finally. This order was made
under case number CIV\APN\39\93. The applicant was served personally
the provisional order of sequestration. He did not file a Notice
of Intention to oppose the application as required in terms of Rule
8(10) of the High Court Rules 1980; nor did he show cause as required
in the provisional sequestration order.
A final order of sequestration was granted on the 8th
In paragraph 7 of his founding affidavit the applicant
avers that the final order of sequestration was made on the 15th
1993 though his lawyer Mr. Mofolo was present in Court and
drew the Judge's attention to the existence of CIV\APN\57\95 which
issued from the office of the Registrar on the 12th February,
1993, i.e. before the final order of sequestration was made on the
15th February, 1993.
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.
What transpired in Court on the 8th March, 1993 is that
Dr. Tsotsi, the first respondent's attorney, stood up when his case
and moved the application for a final order of
sequestration which was not opposed. The application was granted
and the final order was made. Immediately after that
Mr. Mofolo stood up and said he had filed opposing papers. I pointed
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
had happened to his papers.
Mr. Mofolo's behaviour or reaction on that day leaves
much to be desired. He did not say anything when Dr. Tsotsi moved
He waited until the court had pronounced its
judgment. There was nothing I could do to the judgment I had just
pronounced and all
that the applicant could do was to apply for its
It is not correct that Mr. Mofolo had filed any
opposing papers in the sequestration application. It has turned out
that on the 12th
February, 1993 the applicant launched an application
under case number CIV\APN\57\93 in which he prayed for stay of
the judgment in CIV\T\369\92 and rescission of judgment
The Court refused to grant a Rule Nisi and ordered that
the papers in CIV\APN\57\93 be served upon the respondent and that
be 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.
In 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 non-existent
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.
Rule 27 (6) of the High Court Rules 1980 provides that -
Where judgment has been granted againstdefendant in
terms of this rule or whereabsolution from the instance has
beengranted to a defendant, the defendant orplaintiff, as
the case may be, may withintwenty-one days after he has
knowledge ofsuch judgment apply to court, on notice tothe
other party, to set aside such judgment.
The party so applying must furnish securityto the
satisfaction of the Registrar for thepayment to the other party
of the costs ofthe default judgment and of the applicationfor
rescission of such judgment.
(c) 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.
It is common cause that the applicant had knowledge of
the final sequestration order on the 8th March, 1993 but took no
have it rescinded within twenty-one days after he had such
knowledge. He has given no satisfactory explanation why he and his
did not act within the time prescribed by the Rules of
Court. He has provided no good reason why the Court should depart
general principle that the Court having granted a final
order of sequestration is functus officio. It has itself no authority
correct, alter or supplement its order.
The 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
the Court into his confidence and tell it when he had
knowledge of the judgment. The Court will then be in a position to
there was inordinate delay in taking steps to have it
rescinded. It shall also consider
7 whether there is
The 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
signature of the agreement, to deposit with the
respondent proof of assignment to himself of a certain mortgage bond
to a value not
exceeding M300,000-00 as part of the purchase price
and to pay off the balance of the purchase price in instalments
M3000 to M5000 per month. Applicant failed to fulfil
these conditions and on the 21st July, 1992 the respondent had a
against him for performance of the contract in
The applicant entered an appearance to defend whereupon
the respondent applied for summary judgment which was granted on the
September, 1992. The applicant was ordered to deliver the Deed
of Assignment or alternatively to pay M300,000-00 and instalments
M3000 per month from the 31st January, 1992 to the 30th June, 1992
and M5000 per month, thereafter until liquidation of the debt.
applicant was ordered to pay interest and coats. In pursuance of the
judgment the respondent had a writ issued against the applicant
M412,800 plus M6677-28 costs.
It was in the execution of this writ that the Deputy
Sheriff made a nulla bona return on the basis of which sequestration
were instituted. No attempt was ever made to have the
summary judgment set aside nor to have the sequestration order
The first respondent has proved all the requirements
under section 12 of the Insolvency Proclamation No51 of 1957. He has
that he has a liquidated claim larger than M100; that the
applicant has committed an act of insolvency or is insolvent; and
there is a reasonable possibility that it will be to the
advantage of the creditors if the estate is sequestrated.
Mr. 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
to the case of Mohale and another v. The Commissioner of
Lands 5 Surveys & others, C. of A. (CIV) No. 12 of 1987
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
of his 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 (5)
provides, as I have already mentioned, that any
transaction conducted without the consent of the Minister shall be of
And, finally, even if there may be some evidence in the
papers that First Appellant had endeavoured to obtain the Minister's
after the agreement with Second Appellant had been concluded,
there is no allegation in the Appellants' affidavits, nor is there
any evidence whatever, that the Minister withheld his consent
unreasonably. On the contrary, on the available information that
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
signed the Deed of Sale and the applicant took occupation of
the property before the first respondent sought or obtained the
consent in terms of section 35 (l)(a)(i) of the Land Act
Now the question is whether a contract entered into
contrary to the provisions of section 35 can be enforced by the
courts of law.
The answer must be in the negative because section 36
(5) of the same Act provides that any transaction conducted without
of the Minister shall be of no effect. The first
respondent cannot force the applicant to perform the provisions of a
is contrary to the law. That does not mean that parties
do not have actions against each other under unjust enrichment. That
for their lawyers to decide.
In the result the rule is confirmed in terms of prayers
1 (a) and (b) with costs.
JUDGE 7th June, 1993
For Applicant - Mr. Sooknanan For Respondent -
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law