CIV/APN/463/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MAKHOABE
MOHALEROE 1st APPLICANT

and

DEPUTY
SHERIFF (MR MOSHOESHOE) 1st RESPONDENT

LESOTHO
PUBLIC MOTOR TRANSPORT

CO. (PTY)
LTD 2nd RESPONDENT

RULING

Delivered
by the Hon. Mrs. Justice A.M. Hlajoane on 8th June 2005

This is
an Application for stay of execution and rescission of final order
that was granted by this Court on the 17th February,
2005. The basis
for this Application being that a Rule Nisi that had lapsed was
revived and confirmed same day without notice to
the other side.

It is the
Applicant's case that on the extended return date of a Rule Nisi, the
14th February, the matter did not appear on the
motion roll. Counsel
for the 2nd Respondent in this matter came before Court on the 17th
February,

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2005 for
revival and confirmation of the Rule which rule was non-existent as
it lapsed on the 14th February.

The
Applicant raised a point of law on jurisdiction in terms of section 6
of the High Court Act 5 of 1978. The section reads

Section 6: "No civil cause or action within the jurisdiction of
a subordinate Court (which expression includes a Local or
Central
Court) shall be instituted in or removed into the High Court save –

1. by a
   Judge of the High Court acting of his own motion; or

   
   

2. with
   the leave of a Judge upon application made to him in Chambers, and
   after notice to the other party. "

   
   

As
rightly pointed out by the Applicant, looking at form 3 of the
Subordinate Court Rules, the Application for attachment or interdict

for removal of property in leased premises falls squarely within the
Subordinate Courts' jurisdiction. The heading of form 3 reads:

"Summons commencing Action (in which is included an Automatic
rent Interdict), and looking further down at paragraph c of
that
form. The authority for this being Thabo Charles Maitin v Mary
Barigye and Another 1993 –

-3-94 LLR
& LB 270, where it was held that;

"That in terms of section 17 (c) of the Subordinate Courts Order
1988, a Magistrate's Court had jurisdiction to determine
a claim for
ejectment regardless of the value of the property involved;

And further that, the Court a quo (High court) was right in
dismissing the application as it had, contrary to the provisions of

sec. 6 of the High Court Act, 1978, been brought to the High Court
without leave."

On the
issue of confirmation of Rule Nisi which had lapsed Applicant's
contention is that it was wrong for the court to have confirmed
the
Rule which had lapsed without an Application for revival. It was held
in Fisher v Fisher 1964 (4) S.A 644 that the Court had
no power to
revive a Rule Nisi which had lapsed where Plaintiff had failed to
take steps to have it confirmed on the return day.
At least in South
Africa, the Uniform Rules of Court do provide for the revival of a
rule nisi which has been discharged by default
of appearance of the
Applicant.

4

But even
where the Rules of Court do provide for such revival, the Court has
shown no intention to override or detract from the
rights or
interests of an opposing litigant or of third parties. The Rule
should never be taken to diminish the need to care for
such
interests, Ex parte S & U TU Services (Pty) Ltd. In Re S& V
TV Services (Pty) Ltd (In Provisional Liquidation) 1990
(4) S.A 88.

In Ex
parte S & U above the Court considered the lapse of time after
the return date. Three weeks was considered a long time
for
approaching Court for revival as the other side might have heard of
the discharge and acted accordingly by doing acts which
had been
prohibited by the rule nisi.

In casu,
2nd Respondent instead of filing his replying papers, came to Court
to revive the rule and confirmed it at the same time.
And it is worth
mentioning that it was the second time that second Respondent's Rule
lapsed. On the first occasion there was a
formal Application for
revival. On the return date, the 8th November, 2004 the Rule was not
extended but Counsel appeared on the
10th December, 2004 for revival
of the Rule.

The Rule
was revived and extended to the 14th February, 2005. When it so
lapsed on the 14th February, there was no formal application

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for its
revival on the 17th February, 2005.

Because
the matter fell within the Subordinate Court's jurisdiction, and that
the interests of the opposing party were not considered
in reviving
and confirming the Rule, Rule Nisi is thus confirmed in terms of
Prayers 1 (b) (c) and (d) of the Notice of Motion.

1. M.
   HLAJOANE

   
   

JUDGE

For
Applicant: Mr Matooane

For
Respondents: Mr Mabulu