CIV\APN\219\93
IN THE HIGH COURT OF LESOTHO
In the matter between:
THABO FRANCIS LEHOLA Applicant
and
GERTRUDE NOBELUNGU MTHEMBU lst Respondent
TEBOHO MALICHABA RIKINE 2nd Respondent
SHERIFF OF THE HIGH COURT 3rd Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 4th day of june, 1993
On the 8th May, 1993 the applicant launched an ex parte application and was granted a Rule Nisi in the following terms:
That a Rule Nisi be and it is hereby issued returnable on the day May 1993, calling upon the Respondents to show cause why:-
Order of this Honourable Court granted on 1st February 1993 in CIV\APN\38\93 shall not be rescinded.
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The sheriff shall not be ordered to restore possession of Thabong Garage and Mthembu Hotel to Applicant.
The Applicant shall not be allowed to file opposing affidavits in CIV\APN\38\93.
The periods of notice required by the Rules of Court be dispensed with on account of the urgency of this matter.
Prayer 1. (b) apply with immediate effect.
Costs on Attorney client basis.
Further or alternative relief.
It was made returnable on the 24th May, 1993. However, the first respondent anticipated the return day and the matter was argued before me on the 18th May, 1993.
On the 29th January, 1993 the applicant was served with a provisional sequestration order in terms of which he was called upon to show cause on the 15th February, 1993 why his estate
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should not be sequestrated finally. This order was made under case number CIV\APN\39\93. The applicant was served personally with the provisional order of sequestration. He did not file a Notice of Intention to oppose the application as required in terms of Rule 8(10) of the High Court Rules 1980; nor did he show cause as required in the provisional sequestration order.
A final order of sequestration was granted on the 8th March, 1993.
In paragraph 7 of his founding affidavit the applicant avers that the final order of sequestration was made on the 15th February, 1993 though his lawyer Mr. Mofolo was present in Court and drew the Judge's attention to the existence of CIV\APN\57\95 which was issued from the office of the Registrar on the 12th February, 1993, i.e. before the final order of sequestration was made on the 15th February, 1993.
It is not correct that the final order was made on the 15th February, 1993 it was in fact made on the 8th March, 1993.
What transpired in Court on the 8th March, 1993 is that Dr. Tsotsi, the first respondent's attorney, stood up when his case was called and moved the application for a final order of sequestration which was not opposed. The application was granted
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and the final order was made. Immediately after that Mr. Mofolo stood up and said he had filed opposing papers. I pointed out to him that there were no such papers in the Court's file. I advised him to sort out this matter with the Registrar and find out what had happened to his papers.
Mr. Mofolo's behaviour or reaction on that day leaves much to be desired. He did not say anything when Dr. Tsotsi moved the application. He waited until the court had pronounced its judgment. There was nothing I could do to the judgment I had just pronounced and all that the applicant could do was to apply for its rescission.
It is not correct that Mr. Mofolo had filed any opposing papers in the sequestration application. It has turned out that on the 12th February, 1993 the applicant launched an application under case number CIV\APN\57\93 in which he prayed for stay of execution of the judgment in CIV\T\369\92 and rescission of judgment in CIV\T\551\92.
The Court refused to grant a Rule Nisi and ordered that the papers in CIV\APN\57\93 be served upon the respondent and that the matter be set down in the normal way. It will at once be seen that CIV\APN\57\93 had nothing to do with the application for the sequestration order in CIV\APN\39\93.
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In paragraph 9-1 of her opposing affidavit the first respondent deposes that both cases, i.e. CIV\T\369\92 and CIV\T\551\92 are non-existent and that if they do exist they have nothing to do with her. She deposes that CIV\APN\57\93 though launched on the 12th February, 1993 as an ex parte application does not appear to have been moved until the 18th March, 1993, ten days after the final order of sequestration had been made.
Rule 27 (6) of the High Court Rules 1980 provides that -
Where judgment has been granted against defendant in terms of this rule or where absolution from the instance has been granted to a defendant, the defendant or plaintiff, as the case may be, may within twenty-one days after he has knowledge of such judgment apply to court, on notice to the other party, to set aside such judgment.
The party so applying must furnish security to the satisfaction of the Registrar for the payment to the other party of the costs of the default judgment and of the application for rescission of such judgment.
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At the hearing of the application the court may refuse to set aside the judgment or may on good cause shown set it aside on such terms including any order as to costs as it thinks fit.
It is common cause that the applicant had knowledge of the final sequestration order on the 8th March, 1993 but took no steps to have it rescinded within twenty-one days after he had such knowledge. He has given no satisfactory explanation why he and his attorney did not act within the time prescribed by the Rules of Court. He has provided no good reason why the Court should depart from the general principle that the Court having granted a final order of sequestration is functus officio. It has itself no authority to correct, alter or supplement its order.
The summary judgment in CIV\T\368\92 was obtained on the 21st September, 1992. The applicant became aware of this judgment but he does not say when he had knowledge of that judgment. It is the duty of an applicant for rescission of a default judgment to take the Court into his confidence and tell it when he had knowledge of the judgment. The Court will then be in a position to decide whether there was inordinate delay in taking steps to have it rescinded. It shall also consider
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whether there is good cause.
The events which led to the granting of the summary judgment in CIV\T\368\92 are that in terms of clause 5 of the Deed of Sale entered into by and between the parties a copy of which is annexed to the applicant's founding affidavit, the applicant was required, upon signature of the agreement, to deposit with the respondent proof of assignment to himself of a certain mortgage bond to a value not exceeding M300,000-00 as part of the purchase price and to pay off the balance of the purchase price in instalments ranging from M3000 to M5000 per month. Applicant failed to fulfil these conditions and on the 21st July, 1992 the respondent had a summons issued against him for performance of the contract in CIV\T\368\92.
The applicant entered an appearance to defend whereupon the respondent applied for summary judgment which was granted on the 21st September, 1992. The applicant was ordered to deliver the Deed of Assignment or alternatively to pay M300,000-00 and instalments of M3000 per month from the 31st January, 1992 to the 30th June, 1992 and M5000 per month, thereafter until liquidation of the debt. The applicant was ordered to pay interest and coats. In pursuance of the judgment the respondent had a writ issued against the applicant for M412,800 plus M6677-28 costs.
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It was in the execution of this writ that the Deputy Sheriff made a nulla bona return on the basis of which sequestration proceedings were instituted. No attempt was ever made to have the summary judgment set aside nor to have the sequestration order rescinded.
The first respondent has proved all the requirements under section 12 of the Insolvency Proclamation No51 of 1957. He has proved that he has a liquidated claim larger than M100; that the applicant has committed an act of insolvency or is insolvent; and that there is a reasonable possibility that it will be to the advantage of the creditors if the estate is sequestrated.
Mr. Sooknanan, attorney for the applicant submitted that the Deed of Sale upon which the judgment in CIV\T\368\92 was based is null and void on the ground that the Minister's consent was not obtained in terms of section 35 (1) of the Land Act 1979. He referred to the case of Mohale and another v. The Commissioner of Lands 5 Surveys & others, C. of A. (CIV) No. 12 of 1987 (unreported) in which Trengove, J.A. said at p.5:
"Secondly, First Appellant has neither alleged, nor shown, that he sought or obtained the Minister's consent to the transfer of his interest in the lease, in
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terms of Section 35 (l)(b)(i), prior to entering into the agreement with Second Appellant. This was essential because Section 36 (5) provides, as I have already mentioned, that any transaction conducted without the consent of the Minister shall be of no effect. And, finally, even if there may be some evidence in the papers that First Appellant had endeavoured to obtain the Minister's consent after the agreement with Second Appellant had been concluded, there is no allegation in the Appellants' affidavits, nor is there any evidence whatever, that the Minister withheld his consent unreasonably. On the contrary, on the available information that Minister appears to have acted fairly and reasonably in this matter."
I am of the view that in the instant case the decision mentioned above must be followed. The parties in the present case actually signed the Deed of Sale and the applicant took occupation of the property before the first respondent sought or obtained the Minister's consent in terms of section 35 (l)(a)(i) of the Land Act 1979.
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Now the question is whether a contract entered into contrary to the provisions of section 35 can be enforced by the courts of law. The answer must be in the negative because section 36 (5) of the same Act provides that any transaction conducted without the consent of the Minister shall be of no effect. The first respondent cannot force the applicant to perform the provisions of a contract that is contrary to the law. That does not mean that parties do not have actions against each other under unjust enrichment. That is for their lawyers to decide.
In the result the rule is confirmed in terms of prayers 1 (a) and (b) with costs.
J.L. KHEOLA
JUDGE
7th June, 1993
For Applicant - Mr. Sooknanan
For Respondent - Dr. Tsotsi
