ABSA Bank Limited v Latela (CIV/APN/466/01 )

Case No: 
CIV/APN/466/01
Media Neutral Citation: 
[2004] LSHC 47
Judgment Date: 
16 March, 2004

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CIV/APN/466/01

IN THE HIGH COURT OF LESOTHO


In the matter between:


ABSA BANK LIMITED APPLICANT

Vs

MOOROSI EZEKIEL LATELA RESPONDENT


JUDGEMENT


Delivered by the Honourable Mrs. K.J. Guni On the 16th Day of March 2004.


This is a matter of an application for Recognition of a Foreign judgement. The deponent of the Supporting Affidavit - which should be a Founding Affidavit - one Gerhard Francouis Swart claims to be the Manager for Personnel and Small Business Recovery Services for ABSA Bank.


As appears from the applicant's papers that the applicant - ABSA Bank, is a South African Bank registered in the Republic of South Africa (RSA) in accordance with the laws of the said country. It carries on business in the RSA. Its registered Head office is at 27th


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business in the RSA. Its registered Head office is at 27th Floor ABSA BANK TOWER, 160 Main Street Johannesburg. South Africa.


The respondent is Moorosi Ezekiel LATELA a male Mosotho adult employed by Lesotho Government and works for the Department of Health at Queen Elizabeth II Hospital MASERU LESOTHO. Apparently the respondent was sued by ABSA Bank at Bloemfontein Magistrate's Court RSA for payment of M11 260.96 with interest and costs. No appearance to defend was entered, consequently as claimed by applicant, a default judgment was obtained against the respondent.


Because the respondent is a Mosotho who lives and works here in Lesotho, the South African Court has no jurisdiction to enforce its said judgement against him. The applicant seems to seek the enforcement of the said South African Magistrate's court judgement only as far as costs are concerned according to the prayers set out in the Notice of Motion. Those are:-


  1. Recognising the judgement of the Magistrate's Court of Bloemfontein dated 27th October 1999 in the matter between the above litigants under case number 37241/99;

  2. Ordering costs against the Respondents on an attorney and client scale.

  3. Ordering the Respondent to pay the costs of suit granted in favour of Plaintiff in case NO.37241/99 above, in the sum of M986.18;


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  1. Granting Applicant such further and/or alternative relief as the above Honourable Court may deem fit.


PROCEDURE:


The enforcement of foreign judgements is governed by PROCLAMATION 2 of 1922. Whoever wishes to enforce a foreign judgement must do so in total compliance with the piece of the legislation authorising the same. The applicant herein, does not show this court under which law, he is proceeding. Because he has ignored all the relevant provisions of the PROCLAMATION 2 of 1922, he must have elected to proceed under another law which he has chosen not to disclose before this court. I am not aware of any other law which authorise this court to recognise foreign judgements. My search revealed that no such other law authorising this court to recognise foreign judgements, exists. Therefore this application must be dealt with in terms of PROCLAMATION 2 of 1922 - RECIPROCAL ENFORCEMENT OF JUDGEMENTS.


Section 3 (1) PROCLAMATION 2 of 1922 provides for registration in this Kingdom of the judgements obtained overseas, particularly England, Ireland and Scotland. This facility was-extended by Section 6(1) of the proclamation to cover Her Majesty's Dominions.


The relevant portions of these provisions read as follows: -


3(i) "where judgment has been obtained in the High Court in England or Ireland or in the Court of Session in SCOTLAND the Judgment creditor may apply to the High Court at anytime------ -After the date of the judgement to have the Judgement


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registered In the court, and on any such application the Court may, if in all the circumstances of the Case they think it is just and convenient that the judgement should be enforced in Lesotho, subject to the provisions of this section, Order the judgement to be registered accordingly."


6 "(1) Where the King is satisfied that receiprocal provisions have been made by the legislature of any part of Her Majesty's Dominions (If there are still any) outside the United Kingdom for the enforcement within that part of Her Majesty's Dominions of judgements obtained in this High Court, the King may by Notice in the Gazettle declare that this Proclamation shall extend to judgements obtained in a superior court in that part of Her Majesty's Dominions in the like manner as it extends to judgements obtained in a Superior Court in the United Kingdom and on any such notice being published this Proclamation shall extent accordingly". (My underlining to highlight the requirements set out therein).


There are many requirements set out in these provisions which this application should have complied with if it was properly made in terms of PROCLAMATION 2 of 1922. First of all, the application seeking to have the foreign judgement enforced in this Kingdom, should have been made to have that said foreign judgement registered by this court - not recognised.


Before this court can order that a foreign judgement be registered, it must be satisfied that the application complies fully with the provisions of this Proclamation.


It is material for the applicant to show in his application for registration of a foreign judgement, that such foreign judgement has been obtained in a superior court - [Refer to Section 6(l)]not Magistrates Court or any subordinate or lower courts.


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There must be proof that the said Superior Court was sitting in part of Her Majesty's Dominions where there are similar legislative provisions to reciprocate for the judgement obtained at this High Court. In addition there must be established that there has been a declaration by Notice in the Gazette by His Majesty, to the effect that this PROCLAMATION 2 of 1922 shall extend to the judgements obtained in a Superior Court of the said part of Her Majesty's Dominions. The production of a published Notice to that effect should suffice.


In this application, there is nowhere it is alleged that The Republic of South Africa is part of Her Majesty's Dominions. The judgement which the applicant seeks to enforce is not that of the Superior Court. It is alleged, without proof that it is a judgement of the Magistrate's Court. The request for judgement without proof cannot change its character and become a judgement without proof. There must be a proof that such a court has the same status as a Superior Court in England, Ireland, Scotland, Lesotho and other parts of Her Majesty's Dominions.


The judgement or order must be as defined in section 2 of PROCLAMATION 2 OF 1922. The judgement as defined therein, does not include request for judgement.


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All in all, this application has no merit at all. It should not have been made. It therefore must fail. It is dismissed with costs.


K.J. GUNI

JUDGE


For applicant - Mr. M. Mpobole

For Respondents - Mr. Nathane


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