CIV/APN/56/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

PHOMOLO
SEBOKA Appellant

and

MOONLITE
TAXIS 1st Respondent

THE
MAGISTRATE - MRS MOKUENA 2nd Respondent

THE
DEPUTY SHERIFF - MR KHATI 3rd Respondent

THE
ATTORNEY - GENERAL 4th Respondent

JUDGMENT

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 12th March. 2007.

This
matter is before me on review. The Applicant sought relief in the
following prayers:- Stay of Execution, return of motor vehicles

attached in satisfaction of a writ where judgment had been granted by
default, rescinding and correcting the decision of the magistrate
and
allowing Applicant to defend the matter and costs.

2

Briefly
the facts of this case are that, the first Respondent sued the
Applicant at the Magistrate's Court in CC562/2001 for payment
of an
amount of M16,800.00 for arrear rentals still owing. That Applicant
failed to enter appearance to defend the action hence
a default
entered against him.

Applicant
then instructed Counsel, the late Advocate Sethathi to apply for
rescission of judgment. The rescission was granted and
appearance to
defend and a plea were accordingly filed. The matter was set down for
hearing on 11th November, 2003, but neither
the Applicant nor his
Counsel showed up on that day. The matter was heard and evidence was
led and judgment granted against the
applicant by default. A warrant
of execution was issued thereafter and Applicant's property attacked
and removed in satisfaction
of the writ.

In
opposing this Application for review, first Respondent has in his
opposing affidavit raised some points in limine. The first
point
being that the Applicant has filed his Application contrary to Rule
50 of the High Court Rules, in that there was no prayer
requesting
the dispatch of the record from the Magistrate to the High Court. In
answer to that the Applicant has shown that copy
of that record was
attached to the founding affidavit. In fact on

3

perusing
the record I found that the original record from the Magistrate was
there and I was able to go through it for purposes
of review.

That
there has been non observance of Rule 8 (4) which requires at least
that Application be filed 48 hours before it is moved.
Applicant in
response has shown that the Court in its wisdom granted dispensation
with the periods and mode of service on account
of urgency.

Applicant
in his founding affidavit stated the reasons for urgency and showed
that his vehicles were already attached and that they
could be sold
anytime by the Messenger of Court. The Court finds that this called
for urgency. First Respondent has shown in his
papers that sale of
Applicant's property was scheduled for the same month of February
when the Application was moved. Applicant
need not therefore have to
wait till when the sale was to be the next day, he acted immediately
so that even if Applicant was not
successful with this Application
sale could still go on thereafter.

On the
question of security for costs, the Court felt that this point is not
to be considered in isolation. Though these are review
proceedings,
the main prayer is to rescind judgment and allow

4

Applicant
to defend the case. I considered this point basing myself on the
merits of this case, that influenced the Court into concluding
that
no security for costs would be necessary under the circumstances of
this case.

First
Respondent alleged in his summons before the Magistrate's Court, that
he was owed a three months rental for 5 vehicles by
the applicant at
a reduced charge of M1,500.00 per vehicle. He has however claimed an
amount of M16,800 in the summons, for those
five vehicles not M22,500
which would be M1,500 times 5 vehicles by three months. There has
been no explanation in the papers filed
or in his evidence concerning
that huge difference. This alone calls for intervention by this Court
on review.

Kheola J
(as he then was), in S. Setofolo v President Local Court and Others
1985 - 90 LLR 36 had this to say that, "a mistake
of law is
reviewable if it prevents the exercise of the discretionary powers
entrusted to the person making that mistake."
This was the case
where the Magistrate had found a judgment binding on the Appellant
who was not a party to the proceedings in
which judgment was given on
the same land at the Local court. In casu the Magistrate granted
default judgment on the amount not
proved by the facts from what
first Respondent said in evidence.

5

The law
allows a default judgment to be granted where the other side has
defaulted but facts and evidence must establish what has
been claimed
in the summons.

On the
merits of this case, Applicant has argued that the Messenger of Court
did not attach property of a value equivalent to the
judgment debt,
but has attached more that would satisfy the debt because there was
no valuation of such property as requested by
law at the attachment
stage.

In
response to that, first Respondent is saying that such valuation can
be done any time before sale not strictly before attachment
and
removal. Looking at the relevant section, section 41 (a) of the
Subordinate Court rules 1996, the messenger on going to execute
a
writ would ask judgment Debtor to point out property to him. It is
for the messenger at that stage to assess whether such property
would
be enough to satisfy that warrant. The section goes further to say,
after such property is shown to him, "he shall make
an inventory
and valuation of such property". This clearly shows that
valuation is done after attachment but before removal
of such
property. This would be to avoid having to bear costs of removing
more than is enough and having later to return some of
the property,
usually at judgment Debtor's expense.

6

All what
has been said above show that the matter was reviewable. I had shown
earlier that in considering the issue of payment for
security, I had
to also touch on the merits of this case and not to take that point
in isolation. On looking at the case as a whole,
I realized that the
court's sense of justice dictated that there has to be an
interference with the Magistrate's Court's decision,
since there has
been some misdirections.

The
points in limine raised by the first Respondent are dismissed and the
Application for review succeeds. The decision by the Magistrate
is
set aside and the Applicant is granted leave to defend the main
action in CC562/2001. Costs will be costs in the course.

1. M.
   HLAJOANE
   

   
   

JUDGE

For
Applicant: Mr Nathane

For
Respondents: Ms Mohasi