HIGH COURT OF LESOTHO
by the Honourable Mrs Justice A.M. Hlajoane on 15th September. 2004.
an Application in which the Applicant is asking this Court that the
Judgment by the Magistrate in CC1095/2003 be made final
on the ground
that the Respondent failed to comply with the provisions of Rule
52(1)(a) (b) and (c) of the High Court Rules. He
is also asking the
Court to interpret Rule 52(1)(d) in his favour.
history of this case has been that the Applicant obtained Judgment by
default at the magistrate's Court. The Respondent
sought to have that
Judgment rescinded, but the Application for rescission was dismissed
with costs. The Respondent then appealed
to this Court
that decision by the magistrate refusing the rescission.
Respondent has raised some points in limine in this case which I
dismissed and promised that my reasons would form part of the
Judgment in this case. I then ordered that the Appeal from the
magistrate be brought before me for perusal as I felt that I would
not have done any justice to this Application if I were to decide on
it without having glanced at the papers filed in CIV/A/1/04.
Appeal was finally put before me, I learned that from the
Magistrate's Court record the order dismissing the rescission
Application was made on the 17th October, 2003. The Appeal itself was
noted on the 27th October, 2003 and served on the Respondent
30th October, 2003.
of Rule 52(1)(a) of the High Court Rules 1980,
may within four weeks after noting of the Appeal apply to the
Registrar for a date of hearing, but that has not been the
that Appeal. Where Appellant fails to act the Respondent also may at
any time before expiration of two months from the
date of the noting
of appeal set the appeal for hearing with notice to the Appellant.
This also has not been the case.
52(d) further shows that if neither party applies for a date of
hearing as in (a) and (c) above, the appeal shall (my own emphasis)
be deemed to have lapsed. This Rule further indicates that "unless
the Court on Application by the Appellant and on good reasons
shall otherwise order".
Appellant only applied to the Registrar for a date of hearing in
terms of Rule 52(1)(a) on the 11th February, 2004. Even without
making proper calculations, from the 27th October 2003 to 11th
February 2004 can never be within four weeks or two months. Which
therefore means that the appeal had lapsed. Appellant did not even
bother to apply to Court in compliance with the provisions of
52(d) to have the appeal reinstated.
brother Ramodibedi J (as he then was) said in CIV/APN/6/96 Moqhali v
Lephole and Others that,
party cannot be allowed to escape the consequences of the Rules
by simply bolting to the High Court as it were."
of Court were meant to ensure that frivolous applications for
of default judgments are not permitted to delay execution of
obtained judgments to the prejudice of the successful litigants.
Applicant in this case has asked the Court that the Judgment by the
Magistrate be made final, and indeed where an appeal has
such appeal has lapsed, the default judgment by the Magistrate Court
becomes final. In interpreting Rule 52(d) the Court
finds that the
Respondent failed to make good use of the provisions of this Rule by
applying to have the appeal reinstated as it
has lapsed. The Rule is
therefore interpreted in favour of the Applicant.
Application thus succeeds with costs.
Applicant: Ms Mochaba in Person
Respondent: Mr Nteso
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