HIGH COURT OF LESOTHO
MAKHELE 1st RESPONDENT
SENGER OF COURT 2nd RESPONDENT
DELIVERED BY THE HON.
MRS JUSTICE A. M. HLAJOANE ON 30th MAY. 2005.
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.
at the trial was being represented by Mr Pheko, but judgment was on
the 3rd December, 2001 granted by default. After the
Mr Pheko, Mr Nathane took over and applied for rescission of judgment
which was granted on the 11th November, 2002 in
would seem that applicant was not informed of the granting of
rescission as in yet another Application CIV/APN/69/2005,
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.
present Application is for stay of execution as Applicant say there
could be no execution on a rescinded judgment.
occasion to peruse all four files and could not find anywhere where
the judgment that had been granted by default and later
been revived. As the Deputy Sheriff has already attached the
Applicant's immovable property, the Applicant is saying
irregular to have executed on the rescinded judgment. Even if it
could be said that Applicant failed to file his plea after
rescission, but that would not entitle the Respondents to execute
without first having applied for the revival of judgment,
Bank & Another vs Basotho National Party, 1991 - 96 (1) LLR 412.
again the Applicant's case that since there had already been
for movables and sale, and had not been informed of the outcome of
proceeds from that sale, it could not be lawful to
immovable assets under such circumstances.
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.
basis of Theko vs Compol and Another LLR & LB1991 - 92 p239, the
issues in this case would also be resolved on the basis
acceptance of the averments contained in Applicant's affidavit which
have not been challenged.
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.
Applicant: Ms Mochaba
Respondents: Ms Ranthithi
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