HIGH COURT OF LESOTHO
LIPALESA GAMA 1st RESPONDENT
SHERIFF (NKAU MATETE) 2nd RESPONDENT
GENERAL 3rd RESPONDENT
by the Honourable Mrs. KJ.Guni On the 24th February, 2004.
Rescission............Rule 45 (1) (a) HIGH COURT RULES (Legal
Notice 9 of 1980)
............. The meaning thereof............ temporary
measures............with assigned period of validity..........Can
expired Rule Nisi be confirmed?
is a matter of an application for rescission of the order of
rescission of the judgment of this court in CIV/T/243/2000.
applicant herein was the plaintiff in that civil action, while the
respondent was the defendant.
original civil action, there arose a series of applications, two of
which, were made by the defendant and only one - the
application which falls for determination before me, is by the
plaintiff. In this application the plaintiff now applicant
order of this court to rescend an order of court which rescends and
sets aside that judgment entered in her favour in
OF THE CASE
sequence of events which led to the present application went as
1.1. On the 22nd August, 2000, plaintiff issued out summons against
the defendant It would appear from the defendant/respondent's
that he accepted liability for the costs which were incurred by the
plaintiff when she repaired her motor vehicle which
was involved in a
collision with the motor vehicle driven by the defendant/respondent
who caused the said collision. Parties agreed
defendant/respondent will pay cash by instalment or by kind that
amount of damages in the sum of ten thousands maloti (M10,000.00).
Apparently that agreement did not work hence the suit.
1.2. The summons were served upon the defendant/respondent on the
22nd September, 2000.
1.3. No appearance to defend was entered.
1.4. Notice of application of default judgment was filed.
1.5. Default judgment was entered against the defendant.
1.6. During the month of November, 2000, A Writ of Execution was
issued. It was served upon the defendant/respondent. Certain items
his movable property were attached.
2. On the
23rd November, 2000, the defendant/respondent's attorneys filed
ex-parte CIV/APN/45 7/2000, seeking an order of court,
setting aside judgment in CIV/T/243/2000 and staying the execution of
the writ issued out in pursuant of the said
2.1. Rule Nisi - returnable on the 8th December, 2000 was issued and
served upon the plaintiff/applicant' s attorneys.
2.2. No opposing papers were filed. Parties agreed that the
application proceeds uncontested.
2.3. On the return date - 8th December, 2000 when the matter was
called, there were no appearances, consequently, the matter was
struck off the roll.
2.4. When and how the matter reappeared on the court roll, is not in
a conventional way. The record does not show. But despite
according to defendant/respondent the rule nisi eventually expired on
the19th February, 2001.
This should have been the end of the matter.
the 29th May, 2001, defendant/respondent's attorneys filed once more
an ex-parte application for the revival of that expired
They obtained yet another Rule Nisi which was served upon the
attorneys of the plaintiff/applicant.
3.1. Opposing papers were filed forthwith. Plaintiff / applicant's
attorney made it very clear to defendant / respondent's attorneys,
that the confirmation of that Rule Nisi for the revival of the
expired Rule Nisi, will be tenaciously resisted. After notifying
letter the attorneys of the defendant/respondent that the execution
must proceed, they requested the deputy sheriff to proceed
3.2. That application for the revival of the Rule Nisi was to be
heard on the 4th June, 2001, but was postponed for hearing to
11th June, 2001. For no apparent reason the hearing of the matter was
routinely and regularly postponed for a period of three
During that period no further filing of any pleadings seemed
desirable. None was effected. Strangely enough on the 27th
2001, when the matter was called, the defendant/respondent's attorney
asked the court to give them an opportunity to file
affidavit. They gave no reason for their failure to file the same
over a period of four months. The postponement for
hearing to the 3rd
September, 2001 was granted. Nevertheless NO REPLYING AFFIDAVIT, was
ever filed. On the 3 September, 2001, the
attorneys, requested the court to remove the matter from the roll and
undertook to file in due course a
formal Notice of withdrawal of the
said application. This was done.
Expectations are that the matter should now have ended : But it was
not to be.
On the 7th November, 2002 a number of Notices were served upon the
person of the plaintiff/applicant. Her attorneys of record
set-stepped or ignored. The Notices were :
of withdrawal by the attorney of the defendant.
of set-down of that CIV/APN/457/2000.
of appointment of new attorneys of record for defendant/respondent.
4.1. The CIV/APN/457/2000 reappeared on the motion roll of the 18th
November, 2002. When it was called before court, there was
appearance. The matter was struck off the roll with costs.
4.2. However, it would appear that on the 14th November, 2002, the
present attorneys of record of the defendant/respondent approached
ex-parte, the judge in chambers. They sought and obtained a final
court order rescending and setting aside that judgment in
and finally restraining the deputy sheriff from
executing. When this final order was served upon the attorneys of
record of the
plaintiff/applicant, immediately they filed this
present application seeking an order of this court to rescend and set
final order obtained by the defendant/respondent on the
14th November, 2002.
is the plaintifff/applicant's case that on the 14th November, 2002
the defendant should not have approached the judge ex-parte,
chamber and seek and obtain a final order without notice to them.
They applied to this court to set aside the order so erroneously
sought and obtained.
The granting of this application - (CIV/APN/45 7/2000) was not
opposed by the plaintiff/applicant. No opposing papers were
that matter. Therefore in terms of the rules of this court, they
were not obliged to give anyone notice when they approached
judge and obtained the orders as they did. The notices sent by them
to plaintiff/applicant personally were merely out of
goodness of their hearts.
5.1 Was the order obtained on the 14th November, 2002, ex-parte a
Rule Nisi or final order?
5.2. If it was a confirmation of a Rule Nisi, it was therefore a
final order. Is an expired Rule Nisi still available for confirmation
after its expiration?
seems the interim court orders sought and obtained by the
defendant/respondent over the various periods of time, served no
good purpose to him because during the time they were in force,
defendant/respondent took no steps to ensure that they are made
final court orders. He failed neglected and/or abandoned their
confirmation into final court orders despite the fact that the
application - CIV/APN/547/00 was not opposed.
Nisi is but an order of court to which a specific time of validity is
assigned. FISHER vs FISHER 1965 (4) S.A.
Beyond that assigned period of validity the Rule Nisi ceases to be of
legal force and effect, unless it is revived. It
this reason, that the attorneys of this plaintiff/applicant, by
letter dated the 5th September, 2001 -(Annexure "A")
advised the attorneys of the defendant/respondent that they are now
instructing the deputy sheriff to proceed with the execution.
Rule Nisi which set aside the judgment and stayed the execution
thereof had lapsed and therefore the status quo prevailing
the issuing of that Rule Nisi was restored. Grating a final order on
the expired Rule Nisi, without further notice to
the party whose
interests it affects, is wrong. KHAKETLA vs MALAHLEHA & OTHERS C
of A NO. 18/91. The court orders obtained
ex-parte which affect other
people's rights adversely, must always be of a temporary nature.
KHAKETLA vs MALAHLEHA & OTHERS
are two way in which a Rule Nisi may come to an end. The Rule Nisi
may be abandoned by the person in whose favour it was
is to say, the person to whom the Rule Nisi was granted, allows it
to lapse. He may also negligently fail to confirm
it into a final
order. This appears to have been the case in our present matter. The
CrV/APN/547/00 was not opposed. There is
no explanation by the
defendant respondent why his attorneys failed to pursue the
confirmation of the Rule Nisi. Alternatively
that Rule Nisi could
have been confirmed or discharged by the court. These are the only
two ways in which the Rule Nisi can be
properly dealt with, LESOTHO
FOOTBALL ASSOCIATION vs LESOTHO SPORT COUNCIL 1991 - 1992 LLR page
26. The defendant/respondent
elected to abandon the previous Rule
Nisi issued out in his favour. He therefore properly ended the same
by abandonment. He cannot
therefore without reviving it, irregularly
and improper confirm it into a final order.
order obtained ex-parte on an expired Rule Nisi, without indicating
the said state of affairs to the judge, is erroneously
consequently erroneously granted. In terms of rule 45 (1) (a) HIGH
COURT RULES - ( Legal Notice No.9 of 1980) - the
court may MERO MUTO
or upon the application of any party, rescend such an order.
Therefore this application - seeking an order
of rescissoin of an
order of court obtained irregularly, must succeed.
plaintiff/applicant is asking an award of costs in this application,
on the scale as between attorney and client. In their
before this court, the parties have not dealt with the question of
costs. When the party prays for the costs of a punitive
party must satisfy the court that he or she is entitled to the costs
at the punitive scale. The other party should
also be given an
opportunity to show cause why the costs should not be granted at
that punitive scale. Both parties in this matter
has not dealt with
the question of costs. Having left that question of costs open,
there is no reason why costs should therefore
follow a natural
ordinary course. This application is therefore granted with costs.
Applicant : Mr.Grundling.
Respondent : Mr.Metlae.
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