IN THE HIGH COURT OF LESOTHO
In the Matter Between:
B. T. BOLIBE 1st Applicant
'MASECHABA LILLANE 2nd Applicant
NATIONAL UNIVERSITY OF LESOTHO 1st Respondent
THE SHERIFF OF THE HIGH COURT 2nd Respondent
MR MASENYETSE 3rd Respondent
MR LIPHOLO 4th Respondent
Delivered by the Honourable Mrs Justice A.M. Hlajoane on 15th December , 2003.
This Application came before me on the 11th August, 2003 whereby Applicant prayed for an order in the following terms: 1. Directing the respondents to release to the Applicant the following vehicles with immediate effect:
A white Toyota Corolla
Chessie No.: 53EEB009014732
Engine No: E230 77634
Registration No.: AM 834
A White Stripes Pink and Green Venture
Engine No: 2Y9074694
Registration No. AE 417
Declaring that the 2nd to 4th Respondents are not duly appointed deputy sheriffs.
Directing the 2nd to 4th Respondents to pay back the money paid by the applicant to them as fees for deputy sheriffs.
Directing the Respondents to pay costs hereof only in the event of opposition hereto.
Mr Kulundu appeared for the Applicant and Mrs Lethola appeared for all the Respondents. It would be important at this stage to show that, in fact, the matter came before my brother Monapathi J on the 9th June, 2003 and the same counsel were appearing. The matter was postponed to the 1lth August, 2003 for allowing the Respondents to file their answering affidavits. This is on record.
When counsel appeared before me on the 11th, it was by consent of both parties that prayers 1.1 and 1.2 were granted and other prayers deferred to the 25th August, 2003. It would be important also to note that no answering papers were filed of
record on the 11th August, 2003 when both counsel appeared before me.
On the 15th August 2003, the matter came before my brother Nomgcongo J for an application for rescission brought on urgent basis. The matter was referred back to me for consideration as the Judge who granted the initial order by consent of both counsel. When counsel came before me on the 15th August, 2003 it was then that counsel for Respondents indicated that she could not on the 1lth August, 2003 object to anything since she did not have any instructions.
Though the rescission application was filed on urgent basis I ordered that it be first served on the other side and postponed the matter. The matter finally came before me on the 1st December, 2003 for argument on recission application as it was opposed.
In opposing the Application the following points in limine were taken; an abuse of Process. Counsel for Respondents was present in Court and the order that was granted was by consent. It was only on the 15th August 2003 that she then indicated that she had no instructions, yet she never mentioned that in Court. When the order was read in Court on the 11th August, 2003 she never objected to say she hasn't consented. The issue of instructions came after, when Application for rescission was made. I therefore do not see how the order could be said to have been irregular, because even the questionable circumstances under which the order is alleged to have been obtained are not explained.
The Application for rescission was brought on urgent basis, the reason for
urgency being that Respondents were being exposed to contempt of an order of Court obtained in dubious and questionable circumstances. In the absence of an explanation of what the dubious and questionable circumstances are, the Court considers that it would be hesitant to grant a rescission of an order which was granted by consent of both parties. There is therefore no urgency, except that the Respondents are abusing the process of the Court. Lesotho Medical Dental and Pharmaceutical Council v Musoke 1997-98 LLR & LB 49.
Respondents' counsel is saying that there was no notice of set down for the 11th August, 2003. There was no need to have a set down for that date as the matter was postponed in court to the 11th with the hope that they will have filed answering papers, failing which to appear before court and explain why they have not filed. Instead, there was no explanation why they have not filed their papers but consented to the granting of the order.
In her affidavit, counsel for Respondents has not advanced any reasons why she had said she was consenting to the granting of the order of the 11th August, 2003, safe to align herself with the affidavit of the deputy sheriff, the second Respondent.
In the papers filed of record, the affidavit of the 1st Applicant has information to the effect that in another Application, not mentioned by case number, 2nd Respondent was to be paid his fees subsequent to him releasing the two vehicles. That Applicant failed to comply with the order, instead he launched this Application. This is only being said now on application for rescission of the order that was granted by consent. It ought to have been raised in the answering papers and was a valid ground
to have attracted a dismissal of Applicant's claim.
I have found no valid reasons to persuade me in rescinding the order of the 11th August, 2003. The points raised in limine succeed and the Application for rescission is dismissed with costs.
For Applicant: Mr Mosito
For Respondents: Mr Ntlhoki