85 of 2009
THE HIGH COURT OF LESOTHO
the matter between:
PURPOSE COOPERATIVE SOCITY PLAINTIFF
MAFA SEJANAMANE DEFENDANT
date: 31st of May 2010
Delivered by the Honourable
Mr. Acting Justice J.D. Lyons
On the 25th
day of June, 2010
The plaintiff co-operative loaned
to the defendant the sum of M 310,000 in August 2008. The defendant
defaulted in the loan repayments.
By summons filed 16th of March
2009, the plaintiff commenced action against the defendant for M
360,792.65 then owing.
The defendant was served in
accordance with the rules of court by service on adult person (his
house helper) at his place of residence.
No defence was filed.
On 25 June 2009 the plaintiff
obtained judgment by default.
Pursuant to a writ of execution
dated 29th of June 2009, the deputy sheriff moved to execute on the
defendant's property. The defendant
was surprised. He claimed to be
unaware of the proceedings as he had been in South Africa when his
house helper was served.
Be that as it may, the defendant,
conceding his indebtedness, commenced negotiations with the deputy
sheriff. He was trying to find
a way out of his dilemma. The deputy
sheriff appears to have put execution on hold provided the defendant
made some arrangements
suitable to the plaintiff's lawyers for the
payment of the judgment debt.
The defendant failed to
satisfactorily negotiate a settlement. Consequently the deputy
sheriff had no option but to proceed.
The defendant then brought an
urgent motion before the court for a rule nisi staying execution and
setting aside the default judgment.
A temporary interdict was issued.
The date of a notice of motion was 9 March 2010. The temporary
interdict (ex parte) was granted
on 16 March 2010.
I am discharging the rule nisi.
Firstly the notice of motion
should not have been brought as a matter of urgency. The defendant
was aware of the judgment from June
2009. The only reason for any
urgency was that the defendant had attempted to negotiate a
settlement but had failed. He failed
because he could not pay.
Secondly the motion should not
have been brought ex parte. The defendant knew who represented the
plaintiff and service on the plaintiff's
lawyers of record was a
simple exercise that the defendant should have undertaken. An ex
parte application should only be made
if genuinely urgent and where
service on the opponent cannot be affected, or if affected, the
defendant will take action to remove
the spoils of victory from the
reach of the court. None of these was apparent here.
Thirdly, as the defendant seeks to
resend the default judgment, he must show either a procedural
irregularity and/or a bona fide
defence. The defendant does neither.
There was no procedural
irregularity -- although one was originally argued but was later
abandoned. It was misconceived.
As to a bona fide defence, the
defendant accepts his indebtedness but floats a vague argument that
the plaintiff has miscalculated
the amount owing and/or charged
compound interest. It is well settled law that an applicant seeking
to rescind a default judgment
must present sufficient material to the
court to enable the court to examine the proposed defence and
determine the merit of it,
at least to the extent that, if supported
by the proper evidence at trial, the proposed defence presents as
having some prospects
The defendant just threw out a
number of bald assertions that the plaintiff has miscalculated. No
counter calculation was given.
The same applies to his assertion that
compound interest was charged. No actuarial calculation was
presented. The defendant also
argued that the account was improperly
numbered. This was obviously a typographical error by the plaintiff.
The defendant has no
defence. His application was improperly brought
and was brought for the purposes of delay.
The rule nisi granted ex parte on
16 March 2010 is discharged. The plaintiff has shown sufficient
cause. The plaintiff is entitled
to its costs to be taxed if not
the Plaintiff : Mr. Mpaka
the defendant : Ms. Khiba.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law