CIV/APN/402/02

IN THE HIGH COURT OF
LESOTHO

In the matter between:

LESOTHO
BANK A
PPELLANT/APPLICANT

VS

TAMUKU MICHAEL MOLEFE NKALAI
RESPONDENT

J U D G M E N T

DELIVERED ON THE 17^th
DAY OF NOVEMBER, 2006
BY HON. MRS JUSTICE K. J. GUNI

HISTORICAL
BACKROUND OF THE CASE

The respondent herein
approached this court by way of an ex-parte
application and on the
basis of urgency. The Respondent obtained
the rule nisi which was
subsequently confirmed in the absence of
the applicant who was the
respondent in that matter. The applicant
has now approached this
court by way of Notice of Motion
proceedings in which he seeks the
rescission of that defendant
judgment and leave to oppose that
application.

2 APPLICANT’S CASE.

It is averred by the applicant
that he is an adult mosotho male of
‘MALEFILOANE, in the
district of Butha-Buthe here in
LESOTHO. He is a
mine-worker who works and resides at
VAAL REEFS MINES in the
Republic of South Africa. While he
was at work in the Republic of
South Africa, the applicant received
a message from his wife –
‘MANTJOETSENG NKALAI that she
has been served with the
certificate of urgency, the interim court
order-returnable on the
2^nd day of September, 2002. The
applicant explained to
his employer that he has to come to
LESOTHO in order to
deal with that matter. His employer

refused
to release him. Therefore he alleged he was not in willful
default.

The applicant managed to come to
LESOTHO about October,
2002. He consulted with his attorney
of record. They investigated
the case at the High Court registry
office to ascertain the current
state of affairs. It was then
discovered that the rule nisi was
confirmed on the 16^th
September, 2002. The said final order was
not served upon the
applicant nor his wife although according to
the applicant the
said order was reportedly served upon his wife
who denies that she
was served with the final order.

In that ex-parte application
the respondent sought and obtained the
court order which
authorized the sheriff to immediately attach and
take into his
possession this applicant’s motor vehicle. This motor
vehicle
was bought by the applicant on Hire-Purchase from the
LESOTHO
BANK. He further alleges that he has been paying
by monthly
instalments the purchase price of the said mother
vehicle.

3
RESPONDENT CASE

It is the respondent’s case
that the application for rescission is out
of time and that the
applicant was in willful default. It is further
alleged that the
applicant did not act timeously after receiving the
final order.

The applicant has raised some
points in limine. The first question
of law raised is the
existence of the ANSWERING
affidavit.
The
defendent of the said Answering Affidavit did not sign nor
swore
before the commissioner of oaths to acknowledge that he
knows
and anderstands the contents of the said affidavit. SECTION
5 (2)
(a)
THE OATHS AND DECLARATIONS PROCLAMATION 1964.

This document although it
purports to be an Answering Affidavit,
it does not qualify to be
regarded as such because it does not
comply with the provisions of
OATHS AND
DECLATION
REGULATIONS 1964. In terms of SECTON
5 (2) (a) THE
OATHS
AND DECLARATION PROCLAMATION 1964 the
commissioner
of oaths is obliged to certify below the deponent’s
signature or
mark that the deponent has acknowledge that he
knows and
understands the contents of the affidavit. There is no
mark or
signature on the Answering Affidavit purporting to have
been
deposed to by Antony Scot MCALPINE.
That document,

therefore
does not qualify to be regarded as an Affidavit in terms
of the
law. Therefore this application for rescission of the
default
judgment proceeded unopposed.

4 ESSENTIAL REQUIEMENTS IN
AN APLICATION

FOR RESCISSION.

Amongst other grounds the court
may rescend or set aside its own
judgment if the same was
erroneously sought or erroneously
granted in the absence of any
party affected thereby. SECTION
45 (1) (a) HIGH COURT RULES
1980.

The applicant herein seeks the
rescission or setting aside of the
default judgment which was
granted in his absence while he was
away at the mines in VAAL
REEFS, in the Republic of South
Africa. The respondent herein
purported to collect a debt and
execute against the property of
this applicant at once by means of
an ex-parte application. That
is not in order. Debt collection
cannot be effected by means of
ex-parte application.

The order so obtained in the
absence of the other party affected by
it is rescendable. SECTION
45 (1) (a) HIGH COURT RULES 1980.

The
Applicant has to establish on the balance of probabilities as
the
standard of proof applicable in civil matters, that the said

judgment was obtained in his absence and that he was not willfully
in
default. In our present application the applicant has shown
this
court that he was away in the Republic of South Africa when
this
respondent obtained ex-parte the court order in question.

The Applicant although he
received a reliable message that his
wife at his home – at
‘Malefiloane in Butha-Buthe in Lesotho has
been served with an
interim court order in question, his attempts to
come back to
LESOTHO immediately in September in order to
deal with
matter were unsuccessful. He was released on proper
leave only the
following month – October. He then and there took
steps to deal
with the matter. Therefore this court is satisfied that
this
applicant was not in willful default.

As set out in the applicant’s
case – paragraph 2, he has the bona
fide defence. It is not
enough to show the court that the applicant
was not in willful
default, he must in addition show the court that
he was the bona
fide defence. The subject matter of the default
judgment is the
motor vehicle which this applicant claims is his.
He is therefore
entitled to defend the respondent claim to have the
same motor
vehicle attached. On the merits of this application the

applicant
has bona fide defence.
CHETTY
v. LAW SOCITY
TRANSVAAL
1985 (2) SA 756 (A) at 764J – 764 D.

The application is granted as
prayed with costs.

K.J. GUNI
JUDGE

For Applicant: Mr.Ntlhoki

For the Repondent: Ms.
Qhobela