IN
THE HIGH COURT OF LESOTHO

HELD
AT MASERU CIV/T/154/2002

CIV/APN//2009

In
the matter between:

MAPUTSOE
THAPO

(t/a
Phutha-Lichaba Store) Applicant/Defendant

And

LESOTHO
BANK (1999) LIMITED 1^ST
Respondent

DEPUTY
SHERIFF (MR. Mokhothu) 2^ND
Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice T.E Monapathi

On
the 18^th
Day of August 2009

1. 
   A
   party seeking for an indulgence needs no only accept remissness on
   his part, he needs further, where the rules of court have
   been
   transgressed to apply for condination, more especially if he has
   failed or timeously did not take a necessary step. A court
   will
   exercise its discretion for a good cause shown when an indulgence is
   sought.

   
   

2. 
   The
   relevant facts are common cause in this application. These includes
   the fact that Applicant had been absent on the date on
   which the
   matter was set down when eventually judgement was applied for. The
   Defendant replied that he had forgotten or was
   absent minded as a
   result of the length of time between the date of notice of set down
   and the appointed dated for hearing.

   
   

3. 
   The
   Applicant/Defendant approached this court on an urgent basis on the
   29^th
   June 2009. On the 8^th
   July 2009 he had not filed any security for costs nor did he allude
   to that anywhere. This would form one of Respondent’s

   complaints. I directed that the Respondent be served. Two days
   thereafter Respondent filed notice of intention to oppose and
   a
   notice in terms of High
   Court Rule 8 (10) (c).
   The application was heard on the 24^th
   July 2009.

   
   

4. 
   The
   orders sought by the Applicant were as follows:

   
   

“a)
Dispensing with the period and mode of service prescribed by the
Rules on account of the urgency of the matter;

2. 
   Execution
   of judgement granted on 2^nd
   December 2008 in CIV/T/154/02 shall not be stayed pending Applicant
   for Rescission within 14 days;

   
   

2. 
   Judgement
   obtained by default in matter shall not be rescinded and the matter
   be re-opened to give Applicant an opportunity to
   be heard;

   
   

2. 
   Costs
   of suit in the event of opposition;

   
   

2. 
   Further
   and/or alternative relief.”

   
   

5. 
   The
   points raised in the Respondent’s said notice were stated as
   follows: Firstly, that the Applicant’s application
   for stay
   of execution and rescission were time barred inasmuch as judgement
   was granted on the 2^nd
   December 2008 and the Applicant was served with writ of execution on
   the 21^st
   June 2009 as the return of service showed. The writ recorded
   further that “but there were no attachable assets.”

   Presumably, interdicting attachment and execution could only be in
   respect of further action by the Deputy Sheriff. Secondly,
   as the
   notice went that the application did not comply with High
   Court Rule 27 (6) (b)
   inasmuch as the Applicant had not furnished security for costs
   contrary to the peremptory requirements of the said rule. The

   Applicant’s curt response was that the points raised were
   misconceived and were not relevant to the matter at hand. That

   furthermore the granting of relief would not be and was not
   prejudicial to Applicant.

   
   

6. 
   The
   Applicant next said that when filing his application he acted on the
   basis of High
   Court Rule 45
   read with High
   Court Rule 48
   and not in terms of High
   Court Rule 27.
   That is where a judgement had been secured erroneously, where a
   judgement or orders contained ambiguity patent errors or omissions

   or a judgement was granted as a result of mistakes common to both
   parties.
   

   
   

7. 
   I
   was amazed that the Applicant could argue, as he did, as if it was
   only intended that the court should dwell on the aspect of
   stay of
   execution only and that rescission proper would be dealt with later.
   This is not what the Notice of Motion contemplated
   or professed to
   be when looking at prayer (c). Accordingly I invited Mr Monyako to
   deal with all issues belonging to an application
   for rescission
   despite that the technical points raised by Mr Malebanye would, if
   successful, decide the matter on their own.
   I was not successful in
   persuading counsel. In any event the approach advocated for by Mr
   Monyako was rather unusual.

   
   

8. 
   The
   return of service shows that Applicant was served with the writ of
   execution on the 21^st
   June 2009. He applied for rescission and stay on the 29^th
   June 2009. It surely exceeded the twenty one (21) days stipulated
   in the peremptory High
   Court Rule 27 (6) (a)
   the Applicant having known of the writ of execution on the 2^nd
   June 2009. This clearly shows that the application was out of time.
   It ought to be barred and cannot be entertained. See Vincent
   P Masoabi v Assets Recoveries and Another
   CIV/T/204/2005, 3^rd
   November
   2006, Majara J(unreported) I agreed with Mr. Malebanye that in the
   context of where the pleadings had been closed and
   the matter was
   only set down and later postponed, there could be no error omission
   or mistake as envisaged in High
   Court Rule 45.
   Neither would there be any ambiguity. Having reached the
   conclusion, I felt that the applicable rule was Rule
   27 (6) (b).
   At the same time I did not see how the High
   Court Rule 48
   which concerned the giving of security by perigrini
   or companies or in order to guard against uncertainty or
   precariousness and risk was applicable. It certainly cannot be read

   with High
   Court Rule 45.
   I accordingly did not agree with Mr Monyako. Indeed all facts
   points to the applicable rule being the Rule
   27 (6)
   as Mr Malebanye had correctly submitted.

   
   

9. 
   I
   would deal with the second point by saying that the
   High Court Rule 27 (6)
   provides that a party who applies to set aside a judgement under
   Rule
   27
   must furnish security for costs to the satisfaction of the
   Registrar.

   
   

10. 
    I
    agreed that the Applicant’s failure to furnish security for
    costs in this matter is fatal to the Applicant’s application

    as the following line of cases pronounced:
    

    
    

See:
(i)
R. Ramdaries v K Mafaesa CIV/T/56/1983
(unreported).

(ii) Chief
Posholi v Chief Lekhooana – CIV/APN/252/93 Monapathi J. 28^th
February 1994 in
which the following cases were cited (iii).

(iii) Thabo
Lehola v Getrude Mthembu & Anor – CIV/APN/219/93

(iv) Lehlohonolo
Khoboko v Barclays Bank & Anor – CIV/APN/348/88

(v) Rankhethoa
& Anor v ‘Mantoa Letuka & Anor – CIV/T/430/84.

11. 
    Without
    reluctance, I concluded that the application ought to be dismissed
    with costs.
    

    
    

I
so ordered.

---------------------

T.
E. Monapathi

Judge

For
Applicant/Defendant : Mr. A. T. Monyako

For
Respondent/Plaintiff : Mr. S. Malebanye