HIGH COURT OF LESOTHO
by the Honourable Mr. Justice G. N. Mofolo On the 18th day of March,
has approached this court for rescission of judgment on an
application for an order in the following terms:-
periods and modes of service provided by this Honourable Court's
Rules be dispensed with an account of the urgency of this
the execution of judgment in CIV/T/230B/00 be stayed and any
attachment made be uplifted pending the finalization of this
a Rule Nisi be issued returnable on the day of August calling upon
the Respondents to show cause, if any why:
judgment in CIV/T/230B/00 shall not be rescinded.
1st Respondent shall not be directed to pay costs of this
application but only in the event that he opposes this application.
applicant shall not be granted such further and/or alternative
prayer 1 and 2 operate with immediate effect as an interim relief.
August, 2003 it appears that the Court granted interim relief.
Actually the court granted interim relief on 21 August, 03
rule was extended to 01/09/03 and further extended to 08/09/03 when
on this day the matter was postponed to a date to be
the Registrar. The matter appears to have been in limbo until 22
March, 2004 six (6) months later when it was argued
before me. When,
on 22 March, 2004 the application was argued before me, it had long
expired and the rule not having been revived
there was nothing to
argue and any arguments advanced on this basis were erroneously
advanced. Nor is this all, the court entered
the applicant on 28 March, 2003 after plaintiff had given evidence in
support of his claim. And yet it was only on 20 August,
applicant approached this court applying for rescission of judgment.
As I have already indicated, on the day the application
rescission of judgment was argued the rule, according to my file, had
already expired having not been revived. As also shown
applicant applied for rescission of judgment it was nearly five (5)
months after judgment had been granted.
Phoofolo has alleged the judgment was erroneously granted; this
judgment was not erroneously granted for it was shown that
applicant's attorney of record had withdrawn and having withdrawn
applicant was not available to conduct his case. That applicants'
attorney did not inform the Court of his intention to withdraw has
nothing to do with the Court. Besides, it was disturbing for
applicants attorney to withdrew the very last minute when, by any
account,the case should have proceeded. Had the applicant attended
court notwithstanding that his counsel had withdrawn of record,
applicant would have availed himself of the opportunity to seek
postponement to seek services of another lawyer. Since there was
neither counsel nor the defendant to conduct his case and no reason
applicant's absence, the court was obliged to proceed with the case
and I see no irregularity in having done so.
also the question of the delay in bringing this application. As I
have shown above, it was nearly five (5) months after
application for rescission was filed. The view of this court is that
this was regular judgment for in terms of Rule.
27(b) of the Rules of
judgment has been granted against defendant in terms of this rule or
where absolution from the instance instance has been
granted to a
defendant, the defendant or plaintiff, as the case maybe, may within
twenty-one days after he has knowledge of such
judgment apply to
court, on notice to the other party, to set aside such judgment.
party so applying must furnish security to the satisfaction of the
Registrar for payment to the other party of the costs of
and of the application for rescission of such judgment.
the hearing of the application the court may refuse to set aside the
judgment or may on good cause shown set it aside on such
including an order as to costs as it thinks fit.
application was out of time, no security for costs were paid and I
see no prospects of success at the trial. There is no way
I can grant
this application and it is accordingly dismissed with costs to the
Applicant: Mr. Phoofolo
Respondent: Ms. Ramodibedi
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