HIGH COURT OF LESOTHO
MATAU RAHLAO APPLICANT
BANK (1999) LIMITED 1st RESPONDENT
SHERIFF (MOSHOESHOE) 2nd RESPONDENT
by the Honourable Ms Acting Justice N. Majara on 14th February 2005
an urgent application for relief in the following terms:
a Rule Nisi do hereby issue calling upon respondents to show cause,
if any, on a date to be determined by this Honourable
ordinary periods of notice shall not be dispensed with due to the
urgency of this application.
of execution of the judgment of this Honourable Court entered by
the Registrar of the High court on the 21st day of November,
pending the finalization of this case shall not be made.
2nd Respondent shall not be restrained from executing the judgment
of this Honourable Court pending the finalization of
judgment granted by this Honourable Court on 21st November, 2003 in
default of appearance hereof shall not be rescinded
aside by reason that it was granted by mistake or erroneously.
Applicant shall not be allowed to file his opposing papers against
the main action within such a time as may be stipulated
1st Respondent (Plaintiff in the main action), shall not be ordered
and directed to file its Opposing papers, if any, within
from the receipt hereof.
applicant (Defendant in the main action), shall not be granted
costs of this application.
1 (a), (b) and (c) shall operate with immediate effect as interim
interdicts pending the finalization of this application.
Applicant shall not be granted further and/or alternative relief.
13th May 2004, applicant was granted an interim order by His Lordship
JTM MOILOA A.J. and the rule was made returnable on
the 24th May
2004. On the return date, the rule was extended to the 7th June 2004
and was followed by a
extensions until the matter was set down for hearing on the 22nd
date of hearing, both Counsel for applicant, Mr Sekonyela and Counsel
for Respondent, Mr Buys had filed their Heads of Argument.
is indeed indebted to them. Before Mr Sekonyela could move the
application, Mr Buys applied to the Court to have certain
applicant's replying affidavit struck out.
of this application was that the allegation in Clause 1 thereof is
argument and relies on technical matter. His reasoning
respondent contends that Rule 27 (6) (b) provides that security has
to be paid to the satisfaction of the Registrar and
therefore before the application is moved. He argued that applicant
had only paid security on the 31st May 2004
and there was no evidence
that the Registrar had approved the amount or had anything to do with
its determination. Mr Buys submitted
that applicant could therefore
not rely on this evidence in his reply not to mention that in this
application, she does not rely
on the provisions of this Rule.
second clause that Mr Buys applied to have struck out is Clause 1.3
of the same affidavit. His grounds were that the
raises entirely new matter because applicant never relied on the
provisions of Rule 27.
1.4 was also challenged on the grounds that it seems to support some
form of an application for condonation which is not
made as a
substantive application and which is prejudicial to 1st respondent as
the latter had not been afforded the opportunity
to respond to it.
Mr Buys contended that applicant attempted to raise a point in limine
in his replying affidavit and that she is not entitled
to do so as
she does not bear any onus to challenge procedural aspects of the
application or the opposing affidavit.
also raised two points in limine, to wit, that applicant approached
the court in terms of Rule 45 of the High Court Rules
when she should
have come in terms of Rule 27 (5) because as per his contention, the
basis of applicant's case that the default
judgment was erroneously
granted because respondent's claim in the main was not for a
liquidated debt or a liquidated demand is
wrong. It was on this basis
that Mr Buys' submitted that 1st respondent's claim fell within the
ambit of this latter provision.
contended further that applicant was trying to remedy her mistake by
moving into Rule 27 at a late stage.
submission was that she has to stand or fall by her founding papers.
He argued further that the provisions of Rule 27 cannot
be used as an
alternative by applicant paying security after she had already lodged
the application in terms of Rule 45. His submission
was that the
security paid on the 31st May was in contravention of the provisions
of this Rule.
reaction, Mr Sekonyela argued that Clause 1.3 cannot be struck out
because it was raised in the founding affidavit and not just
replying stage. He argued further that with regard to payment of
security, the important thing is for an applicant to have
paid it at
the time of hearing.
issue of condonation, it was Mr Sekonyela's contention that the
foundation of applicant's case is in terms of Rule 45 where
limit is given and that should the court find that applicant was
late, the latter had applied for further and/or alternative
hence why they resorted to Rule 27 and the court has the discretion
to allow applicant to resort to this Rule.
regard to the provisions of Rule 45 1 (a), it was Mr Sekonyela's
contention that applicant's case was based on the fact that
the provisions of Rule 27 (5) the powers of the Registrar to grant
judgment by default are only limited to
claim or demand is liquidated. He argued that for any other claim,
the court is obliged to hear evidence.
Sekonyela submitted that the claim in the summons was not liquidated
but was based on agreement without proof and as a result
judgment was erroneously granted because as per his contention on the
21st November 2003, the Registrar did not have
the requisite proof.
addition, Mr Sekonyela contended that in terms of Rule 45, applicant
does not have to establish good cause or a bona fide defence
why the court is empowered to rescind or vary a judgment mero motu
under the provisions of this rule. He added that applicant
security under the provisions of Rule 27 (6).
proceed to deal with the issues raised.
regard to the application to strike out Clause 1.3, applicant indeed
approached this court in terms of Rule 45 of the High
Court Rules as
per her own averments in her Founding Affidavit and the submissions
in her Counsel' Heads of Argument. In the said
paragraphs 11 and 14 respectively, she averred as follows:
"I am advised by my attorneys of record and believe same to be
true that the said judgment was granted by error or mistake
underlining) as there was no evidence led which proved my
indebtedness to the respondent in terms of the law since the claim
not based on a liquid claim....
...In any event, even if I did not have a bona fide defence to the
claim which I submit that I do, I am advised by my counsel of
and believe the same to be true that, where the judgment of this
honourable Court has been erroneously granted or granted
(my underlining) the Court can rescind the judgment even mero
addition, in her replying affidavit at paragraph 1.2 applicant
averred as follows:
"Further, I deny that this application has been brought out of
time in terms of the rules. This application has been brought
terms of Rules 45 under which there is no time limit."
(1) (a) provides as follows:
"The court may, in addition to any other powers it may have mero
motu or upon the application of any party affected, rescind
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby."
light of the above, I agree with Mr Buys' contention that applicant
did not approach the court in terms of Rule 27 as far
application for rescission is concerned and she therefore cannot be
allowed to resort to its provisions at the replying
addition, as applicant herself has rightly pointed out, Rule 45 does
not provide for any time limit therefore the question of
as raised in clause 1.4 of her replying affidavit does not arise
because the court has to consider the present application
in terms of
the provisions of Rule 45. The application to strike out the portions
in question which make reference to Rule 27 is
therefore granted as
proceed to deal with the issues raised under Rule 45. As already
shown above, it is applicant's contention that the default
which was granted against her in terms of the provisions of Rule 27
(7) of the High Court Rules was granted by error or
reasons are that the respondent's claim (plaintiff in the main) was
not based on a liquid claim and therefore evidence
had to be led to
prove the claim before the Registrar could grant the default
(7) provides as follows:
"The Registrar shall enter default judgments, including
judgments on confession, in undefended actions, on any working day
including vacations, in claims in convention or in reconvention where
a summons is endorsed for a debt or liquidated amount (my
underlining) only excluding actions for provisional sentence."
respondent's case that the summons in its declaration, shows that the
claim was based on moneys lent and advanced and that
a debt as per the provisions of the Rule.
question which this court has to determine therefore is, whether the
1st respondent's claim was for a debt or a liquidated demand.
order to answer this question it is important to firstly establish
what is meant by a debt, and/or a liquidated demand.
Concise Oxford English Dictionary at p 370 the term debt is defined
as 'money or services owed or due.'
Herbstein and Van Winsen's The Civil Practice of the Supreme Court of
South Africa, when discussing the meaning of the term liquidated
demand' under a similar South African rule, it was stated at page 533
"A full Court in the Transvaal case of Fatti's Engineers Co Pty
Ltd v Vendick Spares (Pty) Ltd 1962 (!) SA 736 held that in
the special meaning given to the words 'liquidated demand' in the
former Transvaal rules of court, the expression 'debt
demand' includes a liquidated claim as known in our common law, sc a
claim capable of speedy and prompt ascertainment"
above, it would appear that the provisions of the rule apply in the
case where the claim in question is readily ascertainable.
words, where money or services owed is already determined as opposed
to for instance, a claim for damages where a Judge
determine the amount through his/her award.
I may add
that as a starting point, there appears to be a general consensus
that as per the provisions of Rule 27 (7), claims for
a 'debt or
liquidated demand' are as a matter of fact, claims for the payment of
a sum of money. However, this rule does not so
limit such claims. It
goes even beyond to include claims for ejectment, work done and
materials supplied, money stolen, collection
commission, etc. See
Herbstein & Van Winsen (Supra) p 533. See also the case of
Beringer v Beringer 1953 (!) SA 38.
the above definition in casu, respondent (plaintiff in the main)
approached the court and was granted the default judgment
Registrar in terms of Rule 27 (7) on the basis of a debt in the
amount of M35, 131.45 (Thirty Five Thousand One Hundred
One Maloti and Forty Five Lisente) and interest thereon at the rate
of 18.25% per annum calculated from the date of
issue of summons to
date of payment as stated in his declaration.
own understanding therefore, respondent's claim falls within the
ambit of the definition and with regard to both requirements,
is, either as a debt or a liquidated demand and as such, it is
incorrect to aver that the Registrar granted the default judgment
erroneously. She correctly acted within the powers bestowed on her
per the provisions of Rule 27 (7).
above reasons, I find that the provisions of Rule 45 are inapplicable
herein and I therefore dismiss this application with
Applicant : Mr Sekonyela
Respondent : Mr Buys
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law