IN THE HIGH COURT OF LESOTHO
In the matter between:
JAMES RAJAH APPLICANT
MAMAHALI MONESE 1st RESPONDENT
TEFO MONESE 2nd RESPONDENT
Delivered by the Hon. Mr Justice T. Nomngcongo on the 9th September, 2003
This is an application brought under a certificate of urgency couched in the following terms:
That Rule Nisi (sic) be issued calling upon the Respondents to show cause why the following prayers cannot be made absolute.;
Dispensing with the periods of notice of (sic) modes of service due to urgency.
The Order of Court dated 18th August 2003 shall not be stayed pending the determination of this application.
The original Rule Nisi shall not be re-instated.
The original Application of Stay of Execution pending Appeal shall not be determined after both Applicant and Respondents have been heard.
Costs of suit in the event of opposition.
That Prayers 1(a) and (b) shall operate with immediate effect.
The brief history of the case is that the respondents herein obtained judgment against the applicant, in this court. An appeal was noted against the judgment which I understand is due to be heard in the October session of the Court of Appeal. In the mean time applicant lodged an application in this court for stay of execution pending that appeal. That application was dismissed by this court on the 18th August 2003 in the absence of the applicant or his legal representatives.
The present application obviously calls upon me to revisit that which I decided on the 18th of August. Mr Matooane for applicant calls this an
Order of this Court. Of course, he is correct it was an order of this court dismissing the application after hearing argument on behalf of the respondents no reasons were given when the decision was handed down ex tempore but that makes it. No less an order of court. To ask me to revisit it is the same thing as asking me rescind it and no argument or semantic acrobatics would alter that. Whether the decision amounts to absolution from the instance or not, is absolutely irrelevant for that purpose.
There are Rules and trite principles to be followed when one applies for rescission. The application, choosing to play on semantics that he seeks, not rescission but "re-instatement", has ignored all of them. The court cannot come to his assistance.
In fact the court is of the view that all that the applicant was seeking was to delay the day of reckoning by surreptitiously extending the initial rule nisi staying execution pending judgment that was obtained ex part in the first place.
The application is dismissed with costs.
For Applicant : Mr. Matooane
For Respondents : Mr. Mosae