HIGH COURT OF LESOTHO
Application of :
MOSAE ................. Applicant
the Hon. Mr. Justice B.K. Molai on the 6th day of August, 1986.
application has already been dismissed with costs and the following
are my reasons for the decision.
April, 1984 the applicant herein filed with the Registrar of this
Court an urgent application in which he moved for an order
the following terms:
"(1) That a Rule Nisi be and is hereby issued returnable on a
date to be determined by the court calling upon the Respondent
show cause, if any, why:-
in CIV/T/284/83 shall not be stayed pending the fina-lisation of the
application for rescission of default judgment.
default judgment entered in CIV/T/284/83 on the 15th December, 1983
prayer 1(a) operates as interim interdict with immediate effect.
Respondent pay the costs of this application in the event of
Further and/or alternative relief."
application was placed before Cotran, C.J. who however, ordered that
the papers be served on the Respondent
normal manner, presumably in accordance with the provisions of Rule
27(6)(a) of the High Court Rules 1980. The application
served on the Respondent on 30th May, 1984. The Respondent entered
appearance to oppose the application. He, however,
intimated that he
did not wish to file any answering affidavit but would argue the
matter on the day it was set down for hearing.
We had, therefore,
only the applicant's founding affidavit to rely on, for the decision
in this matter.
disclosed by the founding affidavit were that on 15th December, 1983,
the Respondent obtained a default judgment against
the applicant in
CIV/T/284/83 apparently for failing to pay his monthly instalments.
The applicant had, however, not been served
with the summons and the
purported return of service did not show to whom the service was
effected - A copy of the return of service,
annexure 'B' was attached
- Consequently, the default judgment was irregularly obtained.
February, 1984, the applicant knew for the first time that the
default judgment had been obtained against him. He then contacted
lawyer and instructed him to apply for a rescission of the default
judgment on the grounds that (a) no service had been effected
He was not, therefore, in willful default. (b) He had prospects
of success in the main action in that he never entered
agreement to pay definite instalments per month. He had only been
told by a certain Mr. Mashapha, an official of the Respondent,
instalments irregularly _Two receipts, annexures "D1" and
"D2" reflecting the amounts of M2,370-34 and
respectively were attached as proof of irregular payments of
instalments - Wherefor the applicant prayed for an order as
had a look at the copy of the return of service annexure 'B',
according to which the Deputy Sheriff had served the summons
Defendant" on 31st October, 1983. There was no substance,
therefore, in the applicant's averment that he had not
with the summons and the return of service did not show on whom
service had been effected.
clear from his founding affidavit that the applicant never filed a
notice of appearance to defend CIV/T/284/83. If, notwithstanding
service of the summons in CIV/T/284/83, the applicant did not enter
appearance to defend the action, it seemed to me he was in
default and judgment had been correctly entered against him in terms
of the provisions of Rule 27(5) of the High Court
question of prospects of success in the main action, the Respondent
filed no affidavit to gainsay the applicant's averment
that there was
no agreement binding him to pay definite instalments per month i.e.
he could pay when and if funds permitted and
the question of arrears
did not, therefore, arise.
normally have been prepared to grant rescission on the ground
that prospects of success existed in this matter were
it not for the
fact that it was not disputed in argument, that the applicant had not
furnished security in terms of the provisions
of sub-rule (6)(b) of
Rule 27 of the High Court Rules, supra, The sub-rule reads, in part:
"6(a) where judgment has been granted against defendant in terms
of this rule or where absolution from the instance has been
to a Plaintiff, the defendant or Plaintiff, as the case may be, may
within twenty-one days after he has knowledge of such
to court, on notice to the other party, to set aside such judgment.
(b) the party so applying must furnish security to the satisfaction
of the Registrar for the payment to the other party of the
the default judgment and of the application for rescission of such
judgment." (My underlining)
underscored the word "must" in the above cited subrule 6(b)
to indicate my view that the provisions thereof are
mandatory and the
applicant's failure to comply therewith was fatal to his application
for rescission of the default judgment.
The applicant could not,
therefore, be entitled to the remedy sought under prayer (2) of the
That, in my opinion, disposed of the matter for the other prayers in
the notice of motion really depended on the success
application to rescind the default judgment in CIV/T/284/83.
accordingly dismissed the application with costs as aforesaid.
Applicant : Mr. Kambule
Respondent : Mr. Koornhoff.
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