Lesotho Bank v Matabane (CIV/APN/228/2003 )

Case No: 
Media Neutral Citation: 
[2004] LSHC 22
Judgment Date: 
8 February, 2004




In the matter between:

LESOTHO BANK (in liquidation) Applicant




Delivered by the Hon. Mr Justice T. Nomngcongo on the 8th day of February 2004

This is an application for stay of execution and rescission of judgment. It is common cause that the respondent (applicant in the main case) obtained, ex parte an interim court order against the applicant (respondent in the main case) on the 3rd June 2003. In terms of the order a rule nisi was to issue returnable on the 9th June 2003. That order was only served on the applicant on the 12th June 2003. In the meantime the rule nisi had on the 9th June been extended to the 23rd June, needless to say without the knowledge of the applicant. In between the applicant approached respondent's attorneys to plead her case, which was according to her, that she was not indebted to the respondent at all. She was not able to convince the respondent's attorneys whereupon she proceeded to consult her attorneys. Her attorney, she found out had since left practice and taken up a job as Ombudsman. It was arranged that she consult her present attorneys who gave her an appointment for the 21st of June. It would appear that as a result her present attorneys attended court on the 23rd June, the extended return date, presumably to find out the status of the file.

It does not appear that he knew that that was the extended date. He could not find the file of the case in the registry. I have no doubt the reason for that must have been that it was in court where on that day the respondent had the rule confirmed. Applicant's attorney only learned on the 25th June that the rule had been confirmed. The very following day, the present application was lodged.

All these facts are not disputed by the respondent. It is clear from the above then that the applicant never rested on the laurels from the moment she was served with an order obtained ex parte against her. She did all that was reasonable to have the matter sorted out. When she was unable to agree with respondents she proceeded as fast as she could to have the matter attended to by her attorneys who also proceeded with dispatch in every respect. I do not understand therefore the argument that the applicant is out of time when he approached court just the following day after she


became aware of the judgment against her. Neither can 1 understand the argument that she was in wilful default.

It is also argued that the applicant has not furnished security. Rule 45 of the High Court Rules does not require an applicant to furnish security and there was no necessity for applicant who is not even a peregrinus to furnish it. I think the respondent confuses Rule 45 of the High Court Rules with Rule 46 of the Subordinate

Court Rules which obliges an applicant to furnish security . There is no merit in this argument.

The applicant further says that she has a bona fide defence to applicant's claim in that he has paid in full for the purchase price of the vehicle subject matter of this application. He goes on to say that he would produce pay slips in support of the averment. In my view if these averments are proved in court, the applicant would have a valid defence. That is all that is required.

The final point raised by the applicant is that this court has no jurisdiction to entertain the matter as it is within the jurisdiction of the Magistrate's Court. I think what the applicant had in mind was section 6 of the High Court Act NO. 5 of 1978. It provides


as follows:

No civil, cause or action within the jurisdiction of a subordinate court (which expression includes a local or central court) shall be instituted in or removed into the High Court save:

  1. by a Judge of the High Court of his own motion or

  1. with the leave of a Judge upon application made to him in chambers, and after notice to the other party.

The relief sought by the applicant in the main application is cancellation of a Hire Purchase agreement and re-possession of a motor vehicle. The balance on the contract was M10,089.89 (ten thousand maluti and eighty nine maluti and eighty nine lisente). The cause of action was clearly justiciable in the Magistrate Court. Article 15 of the Hire Purchase agreement between the parties puts the matter beyond any doubt: It reads:

"Subject to the provisions of the act if it should apply to this agreement, the purchaser consents to the jurisdiction of the Magistrate's court for the district of Maseru, or any other magistrate's court which may have competent jurisdiction in respect of any action or proceedings which may be brought against the purchaser by the seller, provided that the seller shall be entitled to institute proceedings in the High Court of Lesotho if such proceedings would but for the aforegoing consent fall outside the jurisdiction of the magistrate court."

This agreement is to be read with section 28 of the Subordinate Court's Act NO.9 of


1988 which reads:

"Subject to section 29, the court shall have jurisdiction to determine any action or the proceeding otherwise beyond the jurisdiction, if parties consent in writing thereto."

Thus for it to be instituted in this Court, it had to be by a Judge on his own motion or on application by a party. No application was made to the Judge who granted the interim as well as the final order. Nor can it be said that by the mere fact that he granted those orders he was of his motion allowing the cause of action to be instituted in the High Court. In my view, "of his motion" denotes some conscious exercise of the Judges mind to the matter at hand. There ought to be an indication that the Judge did so exercise his mind. There is no such evidence in this case. Had he done so I could hardly imagine a Judge of the High Court further burdening the overload of this court with matters that could be dealt with in the Subordinate Courts. To that extent I conclude that the orders were erroneously obtained by the respondent (applicant) within the meaning of Rule 45 1 (a). It was a case such as this that was unvisaged in Nyinga v Moolanan No. 1993 (2) SA 508 at F - G when it was said (per White


"It therefore seems that a judgment has been erroneously granted if there existed at the time of its issue a fact of which a Judge was unaware, which precluded the granting of the judgment and which would have induced the Judge, if he had been aware of it, not to grant judgment."


The application for stay of execution and rescission of judgement is granted with




For Applicant : Mr Molapo

For Respondent : Ms Makhera