CIV/APN/171/83

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

MASILO
NONYANE Applicant

v

'MATHABANG
MALEKE Respondent

JUDGMENT

Delivered
by the Hon. Acting Judge Mr. Justice J.L. Kheola on the 13th day of
March, 1984

This is
an application for rescission of a judgment by default granted
against the applicant in CIV/T/32/82 and in favour of the
respondent.
The procedure for an application for rescission of judgment is
clearly described in Rule 27(6) (a) (b). The first requirement
under
subrule (a) is that the application may be made within twenty-one
days after the applicant has knowledge of such judgment.
In the
present case the applicant became aware of the judgment on the 13th
July, 1983 when the cattle he was herding were attached
and removed
by the chief's messenger. The application was filed with the
Registrar on the 12th August, 1983.

The
question is whether or not the application was out of time when it
was lodged on the 12th August, 1983. My computation of time
is that
the last day was the 8th August, 1983. The application is out of
time.

2

The
second requirement under Rule 27 (6) (b) is that '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'.
In
CIV/T/207/81 Musiyambiri v Molapo (unreported) Mofokeng J., had this
to say on the interpretation of this sub-section:

"To my observation the applicant has no choice but to furnish
security the amount of which is determinable by the Registrar.
The
use of the word "must" in my view is used deliberately. It
is imperative that the applicant furnishes the security
for costs in
terms of the above sub-section." The non-satisfaction of this
sub-section, if my observation is acceptable, means
that the
application cannot be entertained by the Court until the defect has
been corrected; but in very serious cases, such as
where the matter
is left hanging in the air for an unreasonably long time, the
application for rescission for the default will
be dismissed because
in such circumstances it would be rightly said that the applicant is
employing delaying tactics."

I
entirely agree with the view expressed by the learned Judge that the
sub-section is peremptory and that failure to comply with
it means
that the application is wrongly placed before the Court. It was Mr.
Matsau's submission that on this ground alone the
Court was entitled
to dismiss this application. It has been stressed in a number of
cases of this Court that non-compliance with
the Rules of the Court
cannot be condoned. This application is a typical example of how the
Rules of this Court are ignored.

3

I do not
think that it will be necessary for me to go into the merits, i.e.
whether the applicant has a bona fide defence or whether
he has shown
good cause because the two defects I have stated above are fatal.

The
application is dismissed with costs.

ACTING
JUDGE

13th
March, 1984

For the
Applicant : Mr. Tsotsi

For the
Respondent : Mr. Matsau