CIV/APN/56/2004

IN THE HIGH COURT OF LESOTHO

In the matter between:

PHOMOLO SEBOKA Appellant

and

MOONLITE TAXIS 1^st
Respondent

THE MAGISTRATE – MRS
MOKUENA 2^nd
Respondent

THE DEPUTY SHERIFF – MR
KHATI 3^rd

Respondent

THE ATTORNEY – GENERAL 4^th
Respondent

JUDGMENT

Delivered by the Hon. Mrs
Justice A. M. Hlajoane on

12^th 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.

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 11^th 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 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
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 thee
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.
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.

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.

A. M. HLAJOANE
JUDGE

For Applicant: Mr Nathane

For Respondents: Ms Mohasi