CIV/APN/48/2002 CIV/T/690/86
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the Matter Between:
M L MOCASI APPLICANT
And
KPMG/HARLEY & MORRIS
JOINT VENTURE 1st RESPONDENT
COMMANDING OFFICER
MASERU DISTRICT LMPS 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Acting Justice N Majara on 29th April 2005
Applicant herein approached the court on an urgent basis for an order in the following terms:
That a Rule Nisi be issued returnable on a date and time to be determined by this Honourable Court calling upon respondents to show cause, if any, why the following orders shall not be made final and absolute:
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Dispensing with the normal modes and periods of service of this Honourable Court due to the urgency hereof;
Staying the execution of the judgment of the High Court in CIV/APN/690/86 pending finalization of this application;
Directing respondents hereof not to interfere with applicant's property in any manner whatsoever pending finalization hereof;
Setting aside the order of this Honourable Court dated 19th September 2002;
Directing respondent to pay costs hereof;
Granting applicants any further and/or alternative relief.
Prayers (a), (b) and (c) to operate with immediate effect.
This is an old matter which commenced for the first time in the High Court sometime in 1986. Before dealing with the issues raised in this application, a brief background of the facts in order to put the case into perspective is that, on 30th September 1986, Lesotho Bank (plaintiffs in the main) issued a summons against applicant (defendant in the main) and obtained a default judgment against him on the 15th December 1986 for repayment of a personal loan issued to him by the
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bank. The said Lesotho Bank has since been liquidated and respondents herein were appointed as its liquidators. On 14th December 1987 (about a year later), a warrant of
execution of the default judgment was issued by this court and served on applicant whereby his motor vehicle with Registration Numbers A 2600 was attached by the Deputy Sheriff.
After a series of letters between the two parties in apparent negotiation to agree on terms of payment, which went on for a considerable period, on 15th February 2002 a warrant of execution of applicant's immovable property being Plot 13247-001 was re-issued following which on the 31st May 2002 the said property was put up for auction and bought by one Tumo Tlelai for the sum of M12, 000.00.
It is against this backdrop that applicant approached this court in this manner. On the 18th October 2002 applicant moved the application ex parte and was granted an interim order by the Honourable Mrs Justice Guni. The rule was made returnable on the 30th October 2002. Almost two years later, the matter was placed before me and argued on the 8th November 2004.
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On the date of hearing, both counsel for applicant and 1st respondent had filed their heads of argument and the court is greatly indebted to them.
In their opposing papers per the affidavit of one Stefan Carl Buys, respondents raised several points in limine in the following terms;
Applicant failed to show good cause why he failed to take reasonable steps after he received an Order of Court on 24th September 2002.
The evidence that applicant relies on in explaining his willful default to oppose the application for ejectment is hearsay.
There is no urgency in this application because applicant was aware at least from 12th September 2002 of proceedings against him and delayed to prosecute his opposition to the application.
Applicant knew that the matter would be heard in Court on the 16th September 2002 when he was served with the Notice of Motion but failed to take action to ensure that his attorneys appear on the date of hearing.
On the date of hearing, when I had expected that counsel for respondent, Mr Loubser would argue the points in limine first, Mr Letsika, counsel for applicant had the first bite and moved the court to stay execution of judgment obtained by Lesotho
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Bank in 1986 and to set aside the eviction order granted in September 2002.
Mr Letsika's contention was that per the provisions of Rule 56 of the High Court Rules, a party cannot enforce a judgment after a period of three (3) years has lapsed since it was granted. He argued that in casu, it is not clear why the judgment that was granted in 1986 was not enforced soon thereafter and as a result, the writ of execution was irregular, especially since no application had been made per the provisions of Rule 56. Mr Letsika argued further that it was not clear why the movables of applicant were not attached first and sold in execution instead of his immovable property, especially since it is common cause that applicant's car with Registration No. A 2600 was attached at some stage.
Secondly, Mr Letsika argued that even if the default judgment was obtained properly, applicant avers that he had paid up the amount in full as evidenced by some annexures in the court's file.
Lastly, Mr Letsika argued that applicant has a defence in this matter.
In response, Mr Loubser pointed out that the points that applicant raised in court had not been raised in his founding
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affidavit, to wit, the issue of the late writ of execution and that of failure to attach his movables. His contention was that these arguments were raised at a late stage and should therefore be dismissed by the court.
In addition, it was Mr Loubser's contention that before a party-can apply for rescission of any judgment, he must show good cause for such an application as is provided for under Rule 27 of the High Court Rules. He argued that applicant had failed to show such good cause except aver that he had left the matter in the hands of his attorneys. Mr Loubser contended that the responsibility lies with the litigant to show interest in a matter concerning him.
Mr Loubser argued further that applicant has to show that he has a bona fide defence to a claim and it was his contention that in casu, applicant had not shown this. He based his argument on the fact that even if applicant avers that he did pay off the loan, he did not say anything with regard to the interest he owes the bank in the letter that he referred to, whose terms it was clear that Lesotho Bank was not agreeable to. Mr Loubser contended that the debt was never disputed and that there were negotiations between him and the bank but applicant never fulfilled his obligations. He added that applicant avers that he has paid the loan in full and as such
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bears the onus of proof of full payment. In reference to the attached pay-slips, marked annexures MM 1, 2, 3, 4 and 5 respectively, Mr Loubser argued that applicant did not explain who the payer is.
Lastly, Mr Loubser argued that applicant became aware of the eviction order obtained by respondent in default against him which he was seeking to be set aside but had done nothing about it for nearly four (4) weeks and as such should not be allowed to approach the court on an urgent basis without showing what the urgency was and without giving notice to the other party. He added that applicant had also failed to file a certificate of urgency as per the requirements of Rule 8 (22) (C whereby he prayed that the application be dismissed with costs and the interdict be uplifted.
I now proceed to deal with the points raised.
On the last point raised by Mr Loubser, to wit, that the urgent application was not accompanied by a certificate of urgency, upon perusal of the court's file, indeed the Notice of Motion stands alone without the requisite Certificate of urgency as per the mandatory requirements of Rule 8 (22) © of the High Court Rules. The Rule provides that such a Certificate is a must. Failure to comply with this rule is fatal and such an application gets thrown out.
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It has been emphasized time and again that it is imperative to comply with this Rule. Its importance has been reinforced by decisions of the Court of Appeal which have laid down the additional requirement that not only should such a Certificate be filed, but grounds should also be stated briefly why an application is considered urgent by the litigant's attorney. See the cases of The Commander LDF & Ano v Matela 1999-2000 LLR/LB pl3 at pl6 and Sea Lake (Pty) v Chung Hwa Enterprise Co (Pty) Ltd & Ano 1999-2000 LLR/LB p391 at p392.
In casu, not only has the Certificate of Urgency not been filed, but as I have already shown above, this matter is so old that anyone who wanted to approach this court on an urgent basis in its respect had the onus to show that he possesses good grounds on the basis of which this matter should be treated as urgent, especially after so many goings-on since the default judgment was granted in 1986. Moreover, even in the founding affidavit itself, there are no specific averments of urgency, nor are there any facts upon which such averments could be made nor a mere allegation that the matter is urgent. This requirement was laid down in the case of Sikwe v S.A. Mutual Fire & General Insurance CO. LTD 1977 (3) SA p438 at p440.
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Against the background that this is a matter that has dragged on for a considerable period of time, it was not even apparent on the facts before me why the application had to be treated as urgent. In addition, I could not even draw any inference of urgency from the averments in the affidavits.
It is for these reasons that on this point alone, the application is dismissed with costs.
N. MAJARA
ACTING JUDGE
For Applicant : Mr Letsika
For Respondent : Mr Loubser
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