8
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 1ST Respondent
DEPUTY SHERIFF (MR. Mokhothu) 2ND Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice T.E Monapathi
On the 18th Day of August 2009
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.
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.
The Applicant/Defendant approached this court on an urgent basis on the 29th June 2009. On the 8th 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 24th July 2009.
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;
Execution of judgement granted on 2nd December 2008 in CIV/T/154/02 shall not be stayed pending Applicant for Rescission within 14 days;
Judgement obtained by default in matter shall not be rescinded and the matter be re-opened to give Applicant an opportunity to be heard;
Costs of suit in the event of opposition;
Further and/or alternative relief.”
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 2nd December 2008 and the Applicant was served with writ of execution on the 21st 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.
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.
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.
The return of service shows that Applicant was served with the writ of execution on the 21st June 2009. He applied for rescission and stay on the 29th 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 2nd 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, 3rdNovember 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.
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 underRule 27 must furnish security for costs to the satisfaction of the Registrar.
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. 28th 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.
Without reluctance, I concluded that the application ought to be dismissed with costs.
I so ordered.
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T. E. Monapathi
Judge
For Applicant/Defendant : Mr. A. T. Monyako
For Respondent/Plaintiff : Mr. S. Malebanye