CIV/APN/428/2003
CIV/T/368/2000

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

JOSEPH
TJATJI Applicant/Defendant

AND

SUNSHINE
MOTORS First Respondent/Plaintiff

DEPUTY
SHERIFF (MR MASENYETSE) Second Respondent

MONAHENG
KHOANYANE Third Respondent

JUDGMENT

Delivered
by the Honourable Mr Justice T Monapathi On 29th March, 2005.

Applicant
has filed this application on the 9th October, 2003 on a certificate
of urgency. He did so ex-parte and approached Mofolo
J on the 10"'
October, 2003. The interim order was granted by Mofolo J and it is as
follows:

1. “The
   Rules of Court as to form and service be and are hereby dispensed
   with on account of urgency;

   
   

2. A
   Rule Nisi hereby issue returnable on the 20"' October, 2003 at
   9.30 a.m. calling upon the Respondent to show cause (if
   any) why:-

   
   

2

1. The
   third Respondent shall not be interdicted forthwith from disposing
   of or in any manner alienating motor vehicle CGC 070 FS
   pending the
   outcome hereof;

   
   

2. The
   judgment is CIV/T/368.2000 shall not be stayed pending the outcome
   hereof;

   
   

3. The
   sale of motor vehicle CGC 070 FS shall not be declared to have been
   invalid;

   
   

4. The
   third Respondent shall not be directed to restore motor vehicle CGC
   070 FS to the Applicant;

   
   

5. The
   Respondents shall not be directed to pay costs thereof only in the
   vent of their opposition hereto;

   
   

6. The
   Applicant shall not be granted further and or alternative relief.

   
   

3. That
   prayer 1 and 2 (a) operates with immediate effect as an iterim Order
   of Court."

   
   

The
background is that the First Respondent, as judgment creditor had
obtained as judgment on or about the 17th day of May 2000
including
from the day on which a deed of settlement was signed by the
Plaintiff and Defendant.

3

All in
common cause. I noted further that Applicant had already made a token
instalment payment in pursuance of this agreement.

It is to
be noted that the Notice of Motion at 1 (b) requires that the
judgment in CTV/T/368/00 be stayed pending outcome hereof".
Mr
Mohau contended that there was an omission because it had to be
stated that execution of the judgment ought to be stayed. That
may be
so but the question was whether these prayers and the whole
application were justified in the circumstances.

Secondly,
Mr Mohau conceded that the filing of the application with regard to
the times is in contravention of High Court Rules
8(4) and 8(5). He
also concedes that the Court of Appeal has frowned upon this practice
as indeed this is shown in the various
judgments of the Court of
Appeal, and that this has been the attitude of all the courts.
Counsel denied however, that this would
constitute abuse of process
of court and as he contended further that there was not prejudice.

4

The
reason for this Applicant approaching the court ex-parte is to be
found in the certificate of urgency where he says he had considered

the above matter and believed that it warranted urgent relief for the
following reasons:-

"Applicant's property is going to he removed at anytime to his
financial prejudice and detriment. Inasmuch as the writ of
execution
is being executed against him; besides that the Third Respondent
might dispose of the applicant's motor vehicle'', (my
emphasis)

As can be
clearly seen the fact of the sale of the vehicle is intertwined with
what he calls a threat to attach his property. But
ultimately he
conceded that his property had already been attached at Ha Matala on
about 13"' February, 2002 as the return
of service showed. I
took this into account as being significant.

The above
is to be read together with the fact that it was only in October 2003
when Applicant approached the court about sale by
public auction
advertised by the Deputy Sheriff, which was publicized as long ago as
October, 2002 as shown by advertisement in
Lentsoe la Basotho of 24th
to 30th October, 2002 and Notice of sale in Execution dated 17th
October, 2002.

5

This
becomes abundant proof that there was no basis for condoning the tack
of urgency on the part of the Applicant and non-compliance
with the
rules of court. Consequently I found that there was no requisite
urgency. On this ground alone the application stood to
be dismissed.

There is
another hurdle facing the Applicant. While the Applicant complained
about the sale having attracted a mere M5000.00 as
against the
alleged value of the vehicle of M50,000.00 there is no other real
reason why the sale should be invalidated. Nor why
the First
Respondent is faulted as an execution creditor. Nor why the Second
Respondent did anything wrong in his duty to execute
the judgment.
Nor was it alleged that Third Respondent bought the vehicle in bad
faith except that he (Applicant) says the sale
took place at the door
steps of the Applicant's Attorneys' office. This unfortunately was
not even borne out by evidence.

I saw no
contravention of High Court Rule 46 (1) nor any rule of court besides
that the Applicant complained of the invalidity of
the sale in
execution of the vehicle. Nothing really bad or irregular was pointed
out against the threatened sale of execution
of immovable property.
This is against the background also that having entered into a deed
of settlement the Applicant

6

had only
been able to pay a few instalments of M1000.00 each. The judgment
remained unsatisfied. This fully entitled to Execution
Creditor to
requisition for another sale by Deputy Sheriff. There was nothing
procedurally wrong with that.

I would
agree furthermore that this application is fatal by reason of the
fact that it was brought ex-parte on urgent basis when
there was no
urgency present at all. In addition and in the Applicants own
admission, he was discharged from hospital in March,
2003, but he
waited until October 2003 before he file his application. This delay
in itself militated against any urgency that
could be said to exist.

The
application was in any event filed in contravention of the rules in
that two (2) days notice as provided in Rule 8(4) clearly
requires an
ex-parte application to be filed before noon on two (2) court days
preceding the day of set down. This was flouted.
I think it is fatal
to the application.

In
addition the certificate of urgency does not disclose any grounds for
an urgent hearing and is at least misleading. It was incorrect
that
the writ of execution was being executed in relation to the vehicle
it is also incorrect that

7

the
vehicle was going to be removed. At that point in time the vehicle
had already been sold in execution to Third Respondent.

The
founding affidavit also does not indicate, as required by Rule 8(22)
(b) why the application cannot be entertained in due course.
It is
not alleged for example that the Third Respondent is in the process
of disposing the vehicle in question.

The
principles relating to ex-parte applications were clearly enunciated
by Court of Appeal in the cases of Lesotho University Teachers
and
Researchers Union v NUL C of A (CIV) No. 13/98 Leon J and The
Commander LDF& Another v Matela, C of A (CRI) No 3/99 Steyn
P
15th October, 1999. Following the reasoning in those decision, the
interim order herein should be uplifted and the application
as a
whole should be dismissed and because "any possible urgency was
clearly brought about by the Applicants themselves."
The rule
had to be discharged.

In the
circumstances the points-in-Iimine are allowed and the application
dismissed with costs.

8

T
Monapathi

Judge