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could be no execution on a rescinded judgment.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rescinded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irregular to have executed on the rescinded judgment.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.

1. M.
   HLAJOANE

   
   

JUDGE

For
Applicant: Ms Mochaba

For
Respondents: Ms Ranthithi