Palesa Khotso & Ano. V Letshego Financial Services LTD (CCT/0149/2022) [2025] LSHC 121 (14 April 2025)

# Palesa Khotso & Ano. V Letshego Financial Services LTD (CCT/0149/2022) [2025] LSHC 121 (14 April 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/121/eng@2025-04-14) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/121/eng@2025-04-14) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2025/121/eng@2025-04-14) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2025/121/eng@2025-04-14) [ __](mailto:?subject=Take a look at this document from LesLII: Palesa Khotso & Ano. V Letshego Financial …&body=https://lesotholii.org/akn/ls/judgment/lshc/2025/121/eng@2025-04-14) [ Download PDF (348.2 KB) ](/akn/ls/judgment/lshc/2025/121/eng@2025-04-14/source) Report a problem __ * Share * [ Download PDF (348.2 KB) ](/akn/ls/judgment/lshc/2025/121/eng@2025-04-14/source) * * * * * Report a problem __ ##### Palesa Khotso & Ano. V Letshego Financial Services LTD (CCT/0149/2022) [2025] LSHC 121 (14 April 2025) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Palesa Khotso & Ano. V Letshego Financial Services LTD (CCT/0149/2022) [2025] LSHC 121 (14 April 2025) Copy Media Neutral Citation [2025] LSHC 121 Copy Hearing date 30 May 2025 Court [High Court](/judgments/LSHC/) Court registry [Commercial Division](/judgments/LSHC/LSHC-commercial-division/) Case number CCT/0149/2022 Judges [Mokhesi J](/judgments/all/?judges=Mokhesi%20J) Judgment date 14 April 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **(COMMERCIAL COURT)** **Held at Maseru _CCA/ /2025_** **CCT/0149/2022** **In the matter between:** **PALESA KHOTSO 1 ST APPLICANT** **MOORA MPHETHI 2 ND APPLICANT** **AND** **LETSHEGO FINANCIAL SERVICES** **LESOTHO LTD 1 ST RESPONDENT** **THE DEPUTY SHERIFF (MR KHARAMETSANE) 2 ND RESPONDENT** **HLOMPHO KELLY MAITIN 3 RD RESPONDENT** **LAND ADMINISTRATION AUTHORITY 4 TH RESPONDENT** **_Neutral Citation:_** Palesa Khotso & Another v Letshego Financial Services & 3 Others [2025] LSHC 121 Comm. (30 MAY 2025) **CORAM: MOKHESI J** **HEARD: 14 th April 2025** **DELIVERED** : **30 MAY 2025** **_Summary_** **CIVIL PRACTICE:** _Applicants lodged this application on urgent basis seeking a relief that writ of execution against them be set aside as irregular- Additionally, the applicants pray that the sheriff of the court be ordered to follow Rule 46 of the High Court Rules 1980 when executing a writ of execution- Held: The application in the main and in the alternative is dismissed with costs on attorney and own client costs because of the abuse of urgency procedure- Held further that in circumstances where there is an abuse of urgency procedure the court may order punitive costs and stay of proceedings- Applicants further impermissibly supplementing their case in reply- Court rejected the approach._ **Annotations** **Legislation** _High Court Civil Litigation Rules, 2024_ _High Court Rules 1980_ _Practice Direction No.2 of 2024_ **Cases** **Lesotho** _Attorney General & Another v Swiss borough Diamond Mines (Pty) Ltd & Others 1995-1996 LLR & LB 173_ _LNDC v LNDC Employees & Allied Workers Union LAC (2000–2004) 315 _ _Platinum Credit Limited v Anton Nicolaisen N.O & Others (CCA/0057/2022) [[2023] LSHC 24](/akn/ls/judgment/lshc/2023/24) Comm_ _Sole v Lemena & Another (CIV/T/318/2001 & CIV/T/319/2001 (unreported)_ _Standard Lesotho Bank Limited v Tlokotsi Mantus Mphale & Another [[2024] LSHC 252](/akn/ls/judgment/lshc/2024/252) Comm_ **South Africa** _Argus Printing and Publishing Co. Ltd v Rutland 1953 (3) SA 446 (c)_ _Beinash v Wixley 1997 (3) SA 721_ _Commissioner SARS v Hawker Air Services (Pty) Ltd 2006 (4) SA 292 (SCA)_ _Eriksen’s Motor (Welkom) (Pty) Ltd v Protea Motors (Warrenton) 1973 (3) SA 685 (A)_ **_JUDGMENT_** [1] **Introduction** The applicants launched this application on urgent basis seeking the following orders: _“1. That Rule Nisi be issued returnable on the date and time to be determined by this Honourable Court calling upon Respondents to show cause (if any) why the following shall not be made final orders of this Honourable Court._ 1. _Dispensing with the mode and periods of service on account of urgency of this matter;_ 2. _The transfer of rights (into the names of 3 rd respondent) in execution following a writ of execution in CCT/0149/2022 shall be stayed pending the outcome of this application._ _2\. Prayer 1(a) and (b) be made an interim order pending the outcome of this application._ _3\. That any writ of execution purported to have been issued out in terms of rule 47 of the High Court Rules 1980 be set aside as irregular._ _4\. The sale in execution CCT/0149/2022 be set aside or be stayed pending the removal of the irregularities._ _5\. Directing the Deputy Sheriff to follow the procedure in terms of Rule 46 of the then High Court Rules Legal Notice No.9 of 1980 or any other lawful procedure in terms of the current High Court Civil Litigation Rules 2024._ _6\. Condonation for the late filing of this application._ _7\. Alternatively_ _Any title in respect of the plot in issue if already registered in the names of the 3 rd respondent be cancelled._ _8\. Costs of suit in the event of opposition.”_ [2] **Background facts** The applicants are a couple married in community of property. On 14 June 2014 the 2nd applicant with consent of the 1st applicant entered into a credit agreement with the 1st respondent in terms of which the latter advanced a loan to the 2nd applicant. The applicant fell into arrears in terms of monthly repayment of the loan prompting the 1st respondent to issue summons against them to recover the amount owing. The amount owing at the time was the sum of One Hundred and Eighteen Thousand Four Hundred Maloti and Fifty-Four Lisente (M118,400.54). [3] In terms of the Return of service, summons was served personally on both applicants at their residence at Roma, which incidentally was the place chosen in the credit agreement as being where service of court process should be effected. The applicants having thus been served with the summons on the 18 May 2022 did not enter appearance to defend the matter. On 09 August 2022 1st respondent’s request for default judgment was granted by this court. [4] Consequent to the granting of default judgment, execution process kicked into gear with the Registrar issuing the writ of execution against the movable goods of the applicants. Upon service of this writ, the Deputy Sheriff could not find movable property to satisfy the judgment debt. He then filed a _nulla bona_ return on the 13 December 2023. Consequent to this return, the Registrar issued a writ of execution against the applicants’ immovable property on 28 February 2024. The immovable property which is at the centre of these proceedings was attached on that day and was then put up for a public auction on 31 May 2024. The 2nd respondent approached the 1st respondent with the promise to settling the debt but to no avail. The property was auctioned off to the highest bidder being the 3rd respondent for Two Hundred and Fifty Thousand Maloti (M250,000.00). On 5 November 2024 the 2nd applicant was paid the balance of the funds after settlement of the loan through the proceeds obtained from the auction. On 06 November 2024, Kleingeld Attorneys representing the applicants wrote the 1st respondent’s attorneys requesting a liquidation and distribution account pertaining to the sale of the immovable property in issue. On 09 April 2025 the applicants launched the present application on urgent basis seeking the reliefs outlined in the introductory paragraph of this judgment. [5] **Respective Parties’ Cases** Applicants moved this application on urgent basis because they allege that the buyer of the property in issue wants to occupy it after buying it at the auction, in circumstances where the 1st applicant claims, not to have been aware the case against them. She says she was never served with the summons as she stays in the Republic of South Africa where she is employed. She contends that she only became aware of the case on 01 April 2025 while she was at home, when her husband – 2nd applicant – was summoned by the Roma police who were acting to interdict the 2nd applicant from interfering with the 3rd respondent’s occupation of the property. The applicants contend that there were irregularities in the execution process as the Deputy Sheriff used the warrant of execution for attaching movables to attach their immovable property contrary to the prescripts of Rule 46 of the now repealed High Court Rules 1980. In reply the applicants add another string to their arrow (at para.3 of their replying affidavit) which is not the basis on which they founded their case: _“Again it has been disclosed that one Mr Botman through Adv. Ntlatlapa Mosae sought to intervene and bailout the 2 nd applicant but the offices of Mr Shale turned down the offer. I am gainfully employed as a lecturer and as such my salary could have been garnished as opposed to say I don’t have sufficient movable property. By terms of Rules 46 of payment of a debt by instalments is permissible.” _ [6] They allege that execution did not follow the procedure in terms of Rule 47 of the High Court Rules and bizarrely, Section 40 of Subordinate Court Order 1988. I do not wish to regurgitate the 1st respondent’s case as it is reflected in the stated common cause background facts above. [7] **Issues for determination** ****(i) Urgency, and (ii) If necessary, the merits [8] (i) **Urgency** It is trite that urgency pertains to abridgment of the rules of the court sensitive to the peculiar circumstances of the case warranting such abridgment (**LNDC v LNDC Employees & Allied Workers Union LAC (2000–2004) **315 at 325 B-C). This necessarily means that urgency is procedural in nature and does not deal with the substance of the case. (**Commissioner SARS v Hawker Air Services (Pty) Ltd 2006 (4) SA 292 (SCA)****** at para. 9). In the matter of **Platinum Credit Limited v Anton Nicolaisen N.O & Others (CCA/0057/2022) [[2023] LSHC 24](/akn/ls/judgment/lshc/2023/24) Comm. (16 February 2023) **at para. 15) this court highlighted the abuse to which this procedure is subjected by counsel and litigants, and that despite punitive costs orders and several admonitions to counsel this abuse keeps rearing its unsightly head in our civil litigation. This fact was recognised appropriately by the learned Chief Justice in section 1 of the Practice Direction No.2 of 2024 on Urgent Applications where it is stated: _“[1] Experience teaches that the procedure on urgency continues to be the most abused. Legal practitioners are over-optimistic or reckless in their assessment of the requirements of urgency set out in the High Court Civil Litigation Rules Part 9 Rule 72 and will attempt to use the urgency procedure to jump the queue to their client’s advantage”._ [9] Because urgency has nothing to do with the merits of the case, once it is determined that the matter is not urgent the appropriate order to make is not dismissal but to strike matter of the Urgent Roll (see**Commissioner SARS v Hawker Air Services (Pty)** above at para. 9). Hence Rule 72 (7) of the High Court Civil Litigation Rules, 2024 which provides that an application which has been dismissed for lack of urgency may be set down in the normal course as an opposed motion. [10] Rule 72(6) provides that an applicant which seeks an urgent court attention of its matter shall set out in its application supported by affidavit in which the following issues are set out: _“(a) the circumstances which he avers render the matter urgent;_ _(b) the reasons which he claims he could not be afforded substantial redress at a hearing in due course; and_ _(c) be accompanied by a certificate of an advocate or attorney which set out that he has considered the matter and for stated reasons bona fide believe it to be a matter for urgent belief.”_ [11] In determining whether or not there is urgency Practice Direction No. 2 of 2024 Urgent Applications at section 3 provides for elements which control the assessment of urgency, namely: 1. Demonstrable justification of urgency. 2. Whether the urgency is self-created. 3. Consequences of the relief not being granted; and 4. Whether the relief would be irrelevant if it is not immediately granted. [12] The fact that Rule 72(7) states that an application which has been dismissed on account of lack of urgency may be set down for hearing on the merits in the normal course does not render the court impotent, in the proper exercise of its inherent discretion, to deal decisively with a litigant or counsel who abuse its processes. Although the court may strike the case off urgent motion roll if it is not urgent, it still has enough weaponry in its arsenal to deal with abuse of its processes. [13] In my judgment the court can still order an erring party to pay taxed costs on a punitive scale and further order a stay of action until the taxed costs are paid. In the light of the unabating abuse of this procedure this would be an effective punishment. The principle which predicates the remedy of barring a litigant from pursuing his/her rights is well-recognised in our law, and it has been articulated as follows in **Argus Printing and Publishing Co. Ltd v Rutland 1953 (3) SA 446 (c)**at 449: _“The Court has a discretion in deciding whether a stay of action should be granted, or not, and the decisions appear to me to show that it will not exercise that discretion in such a way as to bar a litigation from pursuing his remedy for the infringement of his rights unless he has done something either in the incurring of the costs or in seeking to escape from paying them which invites the court’s disapproval. A factor which will weigh with the court is whether the party who has been ordered to pay costs has incurred them by reason of some abuse of the process of the court. Another factor is whether that party has either deliberately or through carelessness occasioned unnecessary costs, and a third factor the existence of which would warrant the granting of a stay is whether that party has contumaciously refused to pay the costs awarded against him, or is vexatiously withholding payment….”_ __ I am fully alive to the fact that the abusive litigant might escape this sanction where the application was brought _ex parte_ and on urgent basis. But, in my view, where the other party is involved, the errant party must be made to feel the wrath of the court in this sense. [14] What constitutes an abuse of court process is sensitive to the facts of a particular case (**Beinash v Wixley 1997 (3) SA 721**at 734 F-G). The present case represents an egregious abuse of the urgency procedure (and therefore court process) as it is shown in the ensuing discussion. In the light of the common cause facts stated in paragraph 2 above it is clear that the applicants were served with court papers originating litigation against them in August 2022. The writ of attachment of their immovable property was also served upon them on 28 February 2024. The property in issue was sold by public auction at the High Court premises on 31 May 2024. They were aware of all these processes. From communication between the 2nd applicant and 1st respondent’s legal counsel it is clear that the former even sought to negotiate payment to avoid sale of their property. After the sale was concluded, the 2nd applicant was refunded the balance of the purchase price (M99,516.46). After the sale the applicants approached Kleingeld Attorneys, who acting on their behalf, enquired about the sale of the property and the amount generated therefrom. [15] In view of these uncontroverted facts, the assertion by the applicants that they were not aware of the court processes leading to the sale of their property is misleading. Advocate Metsing sought to place much store on the idea that because the 1st applicant who is the 2nd applicant’s wife did not personally receive service of court process means that she was not served is devoid of any legal merit. The agreement between the applicants and 1st respondents provided for the place of service of court process which is the applicants’ matrimonial home at Roma. Service of court processes was effected at this place, and therefore there was nothing untoward with the service of court process. These facts show that when the applicants rushed to court when the horses have already bolted crying urgency, they were misleading this court, and in the process abusing its processes. In the premises I would have ordered that the application be struck off the urgent roll with a consequent order of payment of costs on the scale as between attorney and own client scale and would have further ordered stay of action until the costs would have been paid after being taxed. [16] Given that I did not want this court’s roll to be burdened with this unmeritorious case, and because the parties had – especially the 1st respondent’s counsel had with commendable speed filed its answering affidavit, I ordered that the case be heard on the merits as well. [17] **Temporary Interdict Requirements:** The requirements of a temporary interdict are trite, namely: 1. a _prima facie_ right, though open to some doubt. 2. a well-ground apprehension of irreparable harm if interim interdict is not granted. 3. the balance of convenience favours the granting of the interim interdict, and 4. absence of any satisfactory remedy (**Attorney General & Another v Swiss borough Diamond Mines (Pty) Ltd & Others 1995-1996 LLR & LB 173****** at 182). [18] These factors are not individually decisive but are interrelated (**Eriksen’s Motor (Welkom) (Pty) Ltd v Protea Motors (Warrenton) 1973 (3) SA 685 (A)**at 691F). Without having to unnecessarily spend much time on this aspect of the case, in my judgment, the applicants have failed to satisfy any of the requirements of the interim interdict for the reasons already stated; namely; their property was publicly auctioned off following legal processes in terms of the High Court Rules 1980 and the process of its transfer to the successful bidder is without doubt in terms of the law. They therefore do not have any _prima facie_ right, they do not stand to suffer any irreparable harm, nor does balance of convenience favour the granting of the interdict as the immovable property has been lawfully sold off and has its new owner. [19] **Rule 46(1) Argument** Advocate Metsing for the applicants devoted much of his energy to convincing the court that inasmuch as he did not have any problem with the fact that the applicants owed the 1st respondent the amounts claimed, he however, took issue with the manner with which the immovable property was attached and auctioned off. His main grievance was that the writ of its attachment did not follow the prescripts of Rule 46(1) of the now-repealed High Court Rules 1980. He contended that the writ for the attachment of the immovable property was not issued by the Registrar of the High Court. He further argued that the order of special executability should first have been sought. [20] Advocate Shale for the 1st respondent on the one hand argued that the applicants’ argument is misplaced because in terms of Rule 46 (1) immovable property is attachable under two circumstances namely; (i) where by order of court the immovable property is declared specially executable, and (ii) where a writ to execute immovable property has been issued after a _nulla bona_ return has been made by the Deputy Sheriff and the Registrar perceives therefrom that the said defendant has no sufficient movable property to satisfy the writ. [21] Advocate Metsing had cited the case of **Sole v Lemena & Another (CIV/T/318/2001 & CIV/T/319/2001 (unreported)****,** a decision by Peete J, in which a Deputy Sheriff had attached an immovable property without a writ sued out for attachment of such immovable property. The attachment was set aside on that score. The facts of that case are distinguishable from the facts of the present case as a writ was sued out by the Registrar for attachment of the immovable property after the Deputy Sheriff filed a _nulla bona_ return. [22] **Discussion** **** Rule 46(1) of the High Court Rules 1980 provided that: _“A party in whose favour any judgment of the court has been given may, at his own risk, sue out of the office of the Registrar one or more writs for execution thereof as near as may be in accordance with Form V(1) of the First Schedule annexed hereto,_ _Provided that, except whereby judgment of the court immovable property has been specially declared executable, no such process shall issue against the immovable property of any person until a return shall have been of any process which may have been issued against his movable property, and the Registrar perceives therefrom that the said person has not sufficient movable property to satisfy the writ.”_ [23] Advocate Shale is correct. There are two avenues through which immovable property may be executed, that is either through special executability of the immovable property or through the route of first going for movables and when they are perceived to be insufficient by the Registrar to satisfy the writ, the writ for the execution of the execution of the immovables is sued out of the Registrar’s office. The route of special executability is followed when property is mortgaged so as to circumvent going first for the movable goods of the debtor. I had an occasion to deal with this issue in the case **Standard Lesotho Bank Limited v Tlokotsi Mantus Mphale & Another [2024] LSHC 252 Comm. ****(11 December 2024)** at para. 24, where I said: _“Mortgaged property is treated differently. Its execution is governed by a more than a century old practice. It entitled a creditor to circumvent the route of first attaching the debtor’s movable property and then his immovable in the event of the former not being sufficient to satisfy the judgment debt (**Gerber v Stolze and Others 1951 (2) SA 166 (T.P.D)****at 172 E-H).”**_ [24] In the present matter the Deputy Sheriff went for the applicant’s movables, and he determined that there were none to satisfy the judgment debt, and as a result he made a _nulla bona_ return. On the strength of this return the Registrar of this court perceived therefrom that the applicants did not have sufficient movable property to satisfy the writ and, therefore, issued out a writ for the execution of the immovable property in question. [25] Belatedly, and in reply, the 1st applicant sought to sneak in a new ground for challenging the attachment of their immovable property. At paragraph 3(B) she states that: _“I am gainfully employed as a lecturer and as such my salary could have been garnished as opposed to say I don’t have sufficient movable property. by terms of Rule 46 of payment of debt by instalments is permissible.”_ By doing this, the 1st applicant is breaching the fundamental rule of motion proceedings, which is that an applicant must make out his/her case in the founding affidavit. This is a statutary rule as stated in **Lesotho National Olympic Committee v Morolong LAC (2000-2004)** 449 at 457 B – E:**** _“In Attorney-General and Others v Tekateka and Others LAC (2000-2004) 367 at 373D-E this court once more expressed itself in the following terms which require repetition here:_ _“It is trite that an applicant must make out his or her case in the founding affidavit and that a court will not allow an applicant to make out a different case in reply or still less, in argument.”_ _Indeed it requires to be stressed that in motion proceeding, as in this case, it is to the founding affidavit to which the court will look to determine what the complaint is. As a general rule, an applicant must stand or fall by his petition and the facts alleged therein. The court is confined to resolving the dispute on the issues raised in the founding affidavit and must not have regard to extraneous issues and unproved facts. See for example, Director of Hospital Services v Mistry 1979 (1) SA 626(A) 635F-636A,”_ [26] **Costs:** I have already stated that this matter was heard on compressed timeframes undeservedly, in circumstances constituting an egregious abuse of this court’s process. For this behaviour Advocate Shale had sought costs on attorney and own client scale. In the circumstances of this case, I do not see anything wrong with this request. [27] In the result the following order is made: 1. The application in the main and in the alternative is dismissed with costs on attorney and own client costs. **________________________** **MOKHESI J** **For the Applicants: Advocate Khoete Metsing instructed by K. D Mabulu Attorneys** **For the 1 st Respondent: Advocate Shale Shale instructed by V. M Mokaloba Attorneys** **** __ **** #### __Related documents ▲ To the top >