CIV/APN/275/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

EDWARD
MOEKETSI KHALI Applicant

V

NANDY
KHALI Respondent

JUDGMENT

Filed by
the Hon. Mr, Justice M.P. Mofokeng on the 15th day of February, 1984.

This is
an application for :

1. Rescission
   of the Order given against the Applicant under Civil Application No.
   275/83 on the 12th day of December 1983.

   
   

2. An
   Order directing the Respondent to pay the costs of this Application
   on an Attorney and Client basis.

   
   

3. An
   Order granting the Applicant such further or alternative relief as
   this Honourable Court may deem fit.

   
   

The Order
which the Applicant requests the Court to rescind was based on the
allegation that the Applicant had not complied with
a term of the
Deed of Settlement, when he and Respondent were divorced, which deed
was made an Order of this Court. The Applicant
had undertaken to buy
the Respondent a vehicle of the value of not

2

more than
M5,000.00 (FIVE THOUSAND MALOTI ONLY) "by not later than the end
of October 1983". (My underlining)

On the
morning of the 12th December, 1983 the applicant appeared in person.
He had not previously indicated his opposition but nevertheless
was
afforded a full hearing. He produced documents to prove that he had
bought the respondent a vehicle, albeit out of time, in
terms of the
Deed of Agreement. However, the documents clearly showed that the
same vehicle had been bought for his present wife,
the cause of the
divorce between the applicant and respondent. In the end, the
applicant conceded before me, that he had not complied
with the
provision of 4(c) of the Deed of Settlement which had now become an
order of Court. He was now in contempt of Court. Strictly
speaking he
ought not to have been heard at all. However, he was afforded a full
opportunity of presenting his case before this
Court, He is no
simpleton. He is an Auditor of renown in this Kingdom having been the
first Mosotho to write a text-book on Accountancy.
He under­stood
fully the proceedings and what was required of him.

And now
he complains that the time of the Notice was too short and that it
did not comply with Rule 8(8) of the Rules of this Court.
In my view
this does no longer hold any water. The applicant never raised that
point in as much as he was ready to argue his case
and did not ask
nor was he refused a postponement. In fact, he argued his case very
well indeed. There is attached an annexure
"A" written in
the Sesotho language. The Rules

require
it also be translated into the English language.

3

Lesotho
is a bilingual country.

The
applicant states that he has complied with the terms of the Deed of
Settlement* The relevant term viz. 4(c) stipulates inter
alia that it
shall be complied with "by not later than the end of October,
1983. It simply means that performance could be
effected any time
before the end of October but certainly not thereafter. In Court the
applicant, supported by documents which
he was given time to fetch
from his vehicle outside the Court, proved and conceded that he had
not fulfilled the relevant terms
of Deed of Settlement in dispute.
The applicant had been afforded a full hearing. No irregularity has
been pointed out in the granting
of the previous Order. The applicant
had conceded. I an quite certain that he was fully alive as to what
he said and why he said
ito

The
applicant has not in his affidavits shown that he has a bona fide
defence since in my view, and it has not been submitted otherwise,

that the judgment against which rescission is sought, is a regular
one. (Mthembu v Igbal. 1980(2) L.L.R.510)

It is
quite obvious that the applicant is one of those clients who will do
everything in their power and tell their lawyers everything
but the
truth. He is still venting his vernom on his ex-wife. That is the
sole purpose of the present application.

The
application is refused with costs.

4

JUDGE

14th
February, 1984.

For the
Applicant : In Person

For the
Respondent : Mr.