CIV/APN/466/01

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

ABSA BANK
LIMITED APPLICANT

Vs

MOOROSI
EZEKIEL LATELA RESPONDENT

JUDGEMENT

Delivered
by the Honourable Mrs. K.J. Guni On the 16th Day of March 2004.

This is a
matter of an application for Recognition of a Foreign judgement. The
deponent of the Supporting Affidavit - which should
be a Founding
Affidavit - one Gerhard Francouis Swart claims to be the Manager for
Personnel and Small Business Recovery Services
for ABSA Bank.

As
appears from the applicant's papers that the applicant - ABSA Bank,
is a South African Bank registered in the Republic of South
Africa
(RSA) in accordance with the laws of the said country. It carries on
business in the RSA. Its registered Head office is
at 27^th

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business
in the RSA. Its registered Head office is at 27th Floor ABSA BANK
TOWER, 160 Main Street Johannesburg. South Africa.

The
respondent is Moorosi Ezekiel LATELA a male Mosotho adult employed by
Lesotho Government and works for the Department of Health
at Queen
Elizabeth II Hospital MASERU LESOTHO. Apparently the respondent was
sued by ABSA Bank at Bloemfontein Magistrate's Court
RSA for payment
of M11 260.96 with interest and costs. No appearance to defend was
entered, consequently as claimed by applicant,
a default judgment was
obtained against the respondent.

Because
the respondent is a Mosotho who lives and works here in Lesotho, the
South African Court has no jurisdiction to enforce
its said judgement
against him. The applicant seems to seek the enforcement of the said
South African Magistrate's court judgement
only as far as costs are
concerned according to the prayers set out in the Notice of Motion.
Those are:-

1. Recognising
   the judgement of the Magistrate's Court of Bloemfontein dated 27th
   October 1999 in the matter between the above litigants
   under case
   number 37241/99;

   
   

2. Ordering
   costs against the Respondents on an attorney and client scale.

   
   

3. Ordering
   the Respondent to pay the costs of suit granted in favour of
   Plaintiff in case NO.37241/99 above, in the sum of M986.18;

   
   

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4. Granting
   Applicant such further and/or alternative relief as the above
   Honourable Court may deem fit.

   
   

PROCEDURE:

The
enforcement of foreign judgements is governed by PROCLAMATION 2 of
1922. Whoever wishes to enforce a foreign judgement must
do so in
total compliance with the piece of the legislation authorising the
same. The applicant herein, does not show this court
under which law,
he is proceeding. Because he has ignored all the relevant provisions
of the PROCLAMATION 2 of 1922, he must have
elected to proceed under
another law which he has chosen not to disclose before this court. I
am not aware of any other law which
authorise this court to recognise
foreign judgements. My search revealed that no such other law
authorising this court to recognise
foreign judgements, exists.
Therefore this application must be dealt with in terms of
PROCLAMATION 2 of 1922 - RECIPROCAL ENFORCEMENT
OF JUDGEMENTS.

Section 3
(1) PROCLAMATION 2 of 1922 provides for registration in this Kingdom
of the judgements obtained overseas, particularly
England, Ireland
and Scotland. This facility was-extended by Section 6(1) of the
proclamation to cover Her Majesty's Dominions.

The
relevant portions of these provisions read as follows: -

3(i) "where judgment has been obtained in the High Court in
England or Ireland or in the Court of Session in SCOTLAND the

Judgment creditor may apply to the High Court at anytime------ -After
the date of the judgement to have the Judgement

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registered In the court, and on any such application the Court may,
if in all the circumstances of the Case they think it is just
and
convenient that the judgement should be enforced in Lesotho, subject
to the provisions of this section, Order the judgement
to be
registered accordingly."

6 "(1) Where the King is satisfied that receiprocal provisions
have been made by the legislature of any part of Her Majesty's

Dominions (If there are still any) outside the United Kingdom for the
enforcement within that part of Her Majesty's Dominions of
judgements
obtained in this High Court, the King may by Notice in the Gazettle
declare that this Proclamation shall extend to judgements
obtained in
a superior court in that part of Her Majesty's Dominions in the like
manner as it extends to judgements obtained in
a Superior Court in
the United Kingdom and on any such notice being published this
Proclamation shall extent accordingly".
(My underlining to
highlight the requirements set out therein).

There are
many requirements set out in these provisions which this application
should have complied with if it was properly made
in terms of
PROCLAMATION 2 of 1922. First of all, the application seeking to have
the foreign judgement enforced in this Kingdom,
should have been made
to have that said foreign judgement registered by this court - not
recognised.

Before
this court can order that a foreign judgement be registered, it must
be satisfied that the application complies fully with
the provisions
of this Proclamation.

It is
material for the applicant to show in his application for
registration of a foreign judgement, that such foreign judgement
has
been obtained in a superior court - [Refer to Section 6(l)]not
Magistrates Court or any subordinate or lower courts.

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There
must be proof that the said Superior Court was sitting in part of Her
Majesty's Dominions where there are similar legislative
provisions to
reciprocate for the judgement obtained at this High Court. In
addition there must be established that there has been
a declaration
by Notice in the Gazette by His Majesty, to the effect that this
PROCLAMATION 2 of 1922 shall extend to the judgements
obtained in a
Superior Court of the said part of Her Majesty's Dominions. The
production of a published Notice to that effect should
suffice.

In this
application, there is nowhere it is alleged that The Republic of
South Africa is part of Her Majesty's Dominions. The judgement
which
the applicant seeks to enforce is not that of the Superior Court. It
is alleged, without proof that it is a judgement of
the Magistrate's
Court. The request for judgement without proof cannot change its
character and become a judgement without proof.
There must be a proof
that such a court has the same status as a Superior Court in England,
Ireland, Scotland, Lesotho and other
parts of Her Majesty's
Dominions.

The
judgement or order must be as defined in section 2 of PROCLAMATION 2
OF 1922. The judgement as defined therein, does not include
request
for judgement.

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All in
all, this application has no merit at all. It should not have been
made. It therefore must fail. It is dismissed with costs.

K.J. GUNI

JUDGE

For
applicant - Mr. M. Mpobole

For
Respondents - Mr. Nathane

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