HIGH COURT OF LESOTHO
by the Honourable Mr. Justice G. N. Mofolo On the 3rd day of March,
This is a
case in which summons was issued against the defendant for:-
of M30,248.67 costs of repairs;
of M250.00 a day from date of accident to the date of judgment;
and or alternative relief.
was defended and defendant pleaded to the summons. On 2 November,
2004 the case proceeded and while there was appearance
plaintiff, there was no appearance for the defendant. At the end of
case for the plaintiff judgment by default was granted
It would seem judgement was granted on 2 November, 2004.
November, 2004 the applicant who was defendant in CIV/T/366/99 in
respect of which judgment was granted approached this court
a rule nisi be issued calling upon the Respondent to show cause (if
any) on the 29 day of November, 2004 at 9:30 a.m. why
order shall not be made absolute:
the rules pertaining to periods and modes of service shall not be
dispensed with on the grounds of urgency.
execution of judgment of the above Honourable court in CIV/T/366/99
be stayed pending finalization thereof.
the order of this Honourable Court in CIV/T/366/99
that prayer 1(a) and (b) should operate with immediate effect as an
that prayers 1(a) and (b) should operate with immediate effect as an
the Respondent to pay the costs of this of application.
applicant approached the court for an interim order the same day the
application was lodged and the Interim Court Order reads:-
nisi is hereby issued calling upon the Respondeat to show cause (if
any) on the 29 day of November, 2004, why the following
not be made absolute:
the rules pertaining to periods and mode of service shall not be
dispensed with on the ground of urgency.
execution of judgment of the above Honourable Court in CIV/T/366/99
the order of this Honourable Court in CIV/T/366/99 be rescinded.
respondent has opposed the application and in doing so has taken
points in limine, namely:
Non-observance of the Rules of Court in that:
was filed and moved on the same day when in terms of the rules it
should have been filed two days before it was moved.
moved ex parte in circumstances that did not warrant my not being
given prior notice as an interested party.
court order was granted on 18 October, 2004, it was only filed in
court on the 22nd and served on my attorney on 25 October,
advised that in terms of rules of court movable property attached
pursuant to a writ of execution may not be sold unless
been prior advertisement safe at least 14 days' notice;
does not allege that her property was due to be sold on 18 October
and that she could not have therefore given me notice
4.1 (a) above this may be so though I am of the view that in urgent
applications periods are abridged.
4.1 (b) above, I am of the view that circumstances warranted moving
speedily as she did;
4.2 (c) above it could well be so but there is no evidence that the
applicant was solely responsible for delay in serving
order. And as for (d) regardless of whether there has to be
advertisement before sale, applicant's apprehension was in
reasonable and I am not aware that any of the orders prejudiced the
respondent and (e) the fact alone
property was attached makes sale in execution imminent. I have had no
choice but to dismiss points taken in limine.
merits, the applicant proceeded speedily, has paid the amount of
security in law required and according to her she has a defence
that, according to paragraph 7 of her Founding Affidavit "the
driver of Respondent's vehicle was the one who was negligent
therefore the source of the accident."
I am not
prepared to shut the applicant out and slam the door on her when:-
proceeded timeously in her application for rescission;
has paid the amount of security in law required;
has a bona fide defence.
result the interim order is confirmed and the application is granted
Applicant: Ms. Tau-Thabane
Respondent: Mr. Mohau
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