CIV/T/230/00

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

SEBOKA
KHABELE PLAINTIFF

AND

PETER
LETSOTA DEFENDANT

JUDGMENT

Delivered
by the Honourable Mr. Justice G. N. Mofolo On the 18th day of March,
2005

Applicant
has approached this court for rescission of judgment on an
application for an order in the following terms:-

1. That
   periods and modes of service provided by this Honourable Court's
   Rules be dispensed with an account of the urgency of this
   matter.

   
   

2. That
   the execution of judgment in CIV/T/230B/00 be stayed and any
   attachment made be uplifted pending the finalization of this

   application.

   
   

3. That
   a Rule Nisi be issued returnable on the day of August calling upon
   the Respondents to show cause, if any why:

   
   

1. The
   judgment in CIV/T/230B/00 shall not be rescinded.

   
   

2. The
   1st Respondent shall not be directed to pay costs of this
   application but only in the event that he opposes this application.

   
   

3. The
   applicant shall not be granted such further and/or alternative
   relief.

   
   

4. That
   prayer 1 and 2 operate with immediate effect as an interim relief.

   
   

On 22
August, 2003 it appears that the Court granted interim relief.
Actually the court granted interim relief on 21 August, 03
and the
rule was extended to 01/09/03 and further extended to 08/09/03 when
on this day the matter was postponed to a date to be
arranged with
the Registrar. The matter appears to have been in limbo until 22
March, 2004 six (6) months later when it was argued
before me. When,
on 22 March, 2004 the application was argued before me, it had long
expired and the rule not having been revived
there was nothing to
argue and any arguments advanced on this basis were erroneously
advanced. Nor is this all, the court entered
judgment

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against
the applicant on 28 March, 2003 after plaintiff had given evidence in
support of his claim. And yet it was only on 20 August,
2003 when
applicant approached this court applying for rescission of judgment.
As I have already indicated, on the day the application
for
rescission of judgment was argued the rule, according to my file, had
already expired having not been revived. As also shown
above, when
applicant applied for rescission of judgment it was nearly five (5)
months after judgment had been granted.

Mr.
Phoofolo has alleged the judgment was erroneously granted; this
judgment was not erroneously granted for it was shown that
applicant's attorney of record had withdrawn and having withdrawn
applicant was not available to conduct his case. That applicants'

attorney did not inform the Court of his intention to withdraw has
nothing to do with the Court. Besides, it was disturbing for

applicants attorney to withdrew the very last minute when, by any
account,the case should have proceeded. Had the applicant attended

court notwithstanding that his counsel had withdrawn of record,
applicant would have availed himself of the opportunity to seek

postponement to seek services of another lawyer. Since there was
neither counsel nor the defendant to conduct his case and no reason

was furnished

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for
applicant's absence, the court was obliged to proceed with the case
and I see no irregularity in having done so.

There is
also the question of the delay in bringing this application. As I
have shown above, it was nearly five (5) months after
judgment that
application for rescission was filed. The view of this court is that
this was regular judgment for in terms of Rule.
27(b) of the Rules of
Court, 1980,

1. Where
   judgment has been granted against defendant in terms of this rule or
   where absolution from the instance instance has been
   granted to a
   defendant, the defendant or plaintiff, as the case maybe, 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.

   
   

2. The
   party so applying must furnish security to the satisfaction of the
   Registrar for payment to the other party of the costs of
   the default
   and of the application for rescission of such judgment.

   
   

3. 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 an order as to costs as it thinks fit.

   
   

The
application was out of time, no security for costs were paid and I
see no prospects of success at the trial. There is no way
I can grant
this application and it is accordingly dismissed with costs to the
respondent/plaintiff.

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G.N.MOFOLO

JUDGE

For the
Applicant: Mr. Phoofolo

For the
Respondent: Ms. Ramodibedi

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