CIV/APN/100/2005
IN THE HIGH COURT OF LESOTHO
In the matter between:-
ELLIOT MOKOMA APPLICANT
and
'MACHAPI MAKHELE 1st RESPONDENT
MES SENGER OF COURT 2nd RESPONDENT
JUDGMENT
DELIVERED BY THE HON. MRS JUSTICE A. M. HLAJOANE ON 30th MAY. 2005.
This is one of those cases with a history of change of Counsel by the Applicant. There are four files for the same parties but with different case numbers, a trial and three Applications. The cases in their sequential order are CIV/T/69/90, CIV/APN/446/02, CIV/APN/69/05 and CIV/APN/100/05 the present Application.
Applicant at the trial was being represented by Mr Pheko, but judgment was on the 3rd December, 2001 granted by default. After the
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demise of Mr Pheko, Mr Nathane took over and applied for rescission of judgment which was granted on the 11th November, 2002 in CIV/APN/446/2002. It would seem that applicant was not informed of the granting of rescission as in yet another Application CIV/APN/69/2005, this time by Mr Khasipe, he applied for rescission. Mr Khasipe withdrew that application for rescission when he discovered that the rescission had already been granted in another previous Application.
The present Application is for stay of execution as Applicant say there could be no execution on a rescinded judgment.
I had occasion to peruse all four files and could not find anywhere where the judgment that had been granted by default and later rescinded been revived. As the Deputy Sheriff has already attached the Applicant's immovable property, the Applicant is saying it was irregular to have executed on the rescinded judgment. Even if it could be said that Applicant failed to file his plea after the rescission, but that would not entitle the Respondents to execute without first having applied for the revival of judgment, Lesotho Bank & Another vs Basotho National Party, 1991 - 96 (1) LLR 412.
It was again the Applicant's case that since there had already been
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execution for movables and sale, and had not been informed of the outcome of proceeds from that sale, it could not be lawful to execute his immovable assets under such circumstances.
The law under Rule 47 (7) (b) of the High Court Rules requires that a Notice of Sale must describe fully the property to be sold in execution of a judgment. It has been the Applicant's case that no such description of property was ever made in the Notice of sale. That being the case therefore even if it were to be said it was an execution on a valid writ, non-compliance with that mandatory provisions of the Rules of Court rendered that notice a nullity.
On the basis of Theko vs Compol and Another LLR & LB1991 - 92 p239, the issues in this case would also be resolved on the basis of the acceptance of the averments contained in Applicant's affidavit which have not been challenged.
The rule is thus confirmed with costs. This being an old case, the applicant to file his papers in the trial to allow for hearing of the matter.
M. HLAJOANE
JUDGE
For Applicant: Ms Mochaba
For Respondents: Ms Ranthithi
