HIGH COURT OF LESOTHO
(PTY) LTD 1SI Applicant/ 1st Defendant
SENEKANE 2nd Applicant / 2nd Defendant
Applicants/Defendant : Mr. S. Malebanye
Respondent/Plaintiff : Mr. M. Ntlhoki
by the Honourable Mr. Justice T. Monapathi on the 4th day of March
action between the parties was filed on the 5th September 1996. In
that claim one Sheshe Mohloboli was one of the defendants together
with the Applicants herein. The claim was for a total sum of
M23,800.00. It was alleged that the Defendants had been, as fully
described in the declaration, responsible for destruction of
Plaintiff's business premises, stock-in-trade and had caused loss of
successful application for rescission of default judgment had
resulted in costs against the Plaintiff/Respondent. The costs were
taxed on two occasions and this resulted further in issuance of a
writ of execution which features in the present application.
Significantly, these taxed costs now amount to more than half of the
present application, which was filed on the 3rd August, 2000 is "for
an order as follows:
Respondent from proceeding with his main action in CIV/T/392/96
pending payment of the amount of M12,534.41 (Twelve Thousand Five
Hundred and Forty one Lisente) being the total of Applicants' taxed
costs in the application for rescission.
Respondent to pay Applicants' taxed costs pursuant to the writ of
taxation dated the 3rd August 1999.
Respondents to pay costs in the even of opposition.
Applicants any further and or alternative relief."
suggested that if the amount shown in the writ was payed then there
would be no need for prayer (1).
application was opposed through a twelve paragraphs answering
affidavit of the Respondent. The result was a replying affidavit
deponed to by Applicants' attorney Mr. Seymour Clyde Harley.
satisfied that the Deputy Sheriff Mohoang attached the following
property "of the Respondent": Toyota Hilux bearing
registration numbers J 534, Roadside Garage and general dealer's
shop. This was proved by the said Deputy Sheriff's annexed return of
service. To this the Respondent's response was that the attachment
was irregular inasmuch as the writ of execution was especially for
movable property, yet it is alleged that that Deputy Sheriff Mohoang
decided on his own to include immovable property. No reliance could
be placed on that patently irregular attachment, as Respondents
submitted. Furthermore as Respondent contended property allegedly
attached did not belong to him but to his wife.
the Respondent refused to show other movable property other than the
vehicle or whether or not the Deputy Sheriff wrongly attached
immovable property or whether or not the Deputy Sheriff was
obstructed later from removing remaining goods or further executing
did not overly bother me. I attached importance to the Respondent's
statement that he had no property at all and all property belonged to
his wife. What this
was that he was unable to satisfy a judgment of this Court on costs.
Respondent did not demonstrate how the property was owned by his wife
except that their marriage was out of community of property the
Applicant did not seek to contradict this. He was prepared to take
things at their face value. That is to say if the property was not
the Respondent's and if the wife's property cannot satisfy the claim
for costs then there is no likelihood of Applicants' costs be
recovered even if it succeeded in its defence. Indeed by his own
admission the Respondent had actually prevented further property
being attached and/or had refused to point out any.
Respondent would not be able to pay even if he was willing, he
attributed to the fact that his business had collapsed after
destruction of his business premises and stock-in-trade which is the
subject of the claim in CIV/T/392/96 as intimated previously.
attitude (of his inability to pay) was exhibited by the Respondent
when a debate in Court took place following on Mr. Malebanye's
suggestion that the Respondent may perhaps offer payment of security
only. It was that as Mr. Malebanye proposed, instead of granting
prayers 1 and 2 the Respondent could accept to pay security by way of
a bond or deposit into his own attorney's trust account for payment
of the taxed costs in the amount of the writ. Respondent's response
was straightforward. It was that if he could not pay he could not
cause issuing out of a security bond or deposit into his attorney's
trust account. Hence the Applicant became fortified indication in the
made. It was that there was the initial difficulty of recovering
costs and that consequently there was hopelessness in pursuing
further execution in view of the Respondent's attitude.
addition to above was the fact that, as mentioned by the Deputy
Sheriff who was accompanied by one Bolibe, the Respondent had had
difficulty in pointing out the property to be executed for the reason
that, as he asserted, he was married out of community of property to
his wife whose property it was. It was all the property that the
messengers sought to attach.
issue that arose from the Plaintiff's response to the inability of
the Deputy Sheriff to remove property was that while dealing with
movable property the Deputy Sheriff was not entitled to execute on
immovable property without a nulla bona return. The matter was not
addressed before this Court but all in all I got the impression that
the only explanation why the movables were not attached was that of
obstruction by First Respondent based on the reason given above and
the additional one, that the property had belonged to his wife.
Malebanye proposed that while the matter of stay remains in the
discretion of the Court the main consideration should be that of
prospects of success of the defendant's defence. The other side of
the coin was whether the Court takes a prima facie view that the
Plaintiff claims will succeed or whether it will not. This meant that
the principles are
to those which one finds when investigating prospects of success in
applications for stay of execution pending rescission. And in an
investigation into whether one has a bona fide defence where entry of
summary judgment is being opposed by a defendant.
further as Mr. Malebanye wanted to persuade the Court, that if the
defence was prima facie likely to succeed there was more of a risk
that the Applicant's costs would not be paid. That prejudice would be
even more when coupled with the present attitude of the Plaintiff not
to pay whether it was through inability or unwillingness. What was
more, there would be more costs to contend with on the part of the
Plaintiff. In the circumstance as submitted the present action had to
be stayed on condition that the Plaintiff was to pay the costs
incurred so far: Mr. Malebanye submitted that there has been, as
already shown, that prejudice and the not so good case of the
Plaintiff as would be shown in Defendants' plea as well. This was
therefore a good basis for the exercise of the Court's discretion in
favour of the Applicant.
Ntlhoki countered by submitting that it would be an erroneous
approach for the purpose of determining whether to stay proceedings
or not, to investigate the merits in the way Mr. Malebanye submitted
as shown hereinbefore. Counsel said the ratio for a stay of
proceedings for non-payment of costs was abuse of process of the
Court and vexatiousness. In one way or the other and in different
forms this as he contended seem to be regarded as central. I
suspected this applied mostly in cases where more than one actions
were involved. This (vexatiousness) seems to be the thread that goes
complaints where more than one action was involved.
Counsel submitted further in dealing with stay and after considering
the above indices the Court retained a wide discretion in the matter.
Factors that should influence the Court to decide were not those
concerned with proof of merits. But, they were to be found in the
history of the matter or conduct of the parties, in dealing with
procedures along the line until such time as one party seeks for
stay. In the instant matter the Court was concerned with ruling on
rescission until award of costs and writ.
Ntlhoki went on to spell out the requisites as being as follows:
Firstly, that there must be substantial identity of cause of action
and parties. This was necessary I suppose where the complaint was
that many matters were being vexatiously filed by a plaintiff against
a defendant. And where at a given moment there was more than one
action or matter subsisting and where one of the cases or all were
being sought be stayed pending payment of costs. Secondly, there must
have been a judgment for costs already in existence in favour of the
party seeking a stay pending payment of those costs.
end of it all the ordering of such stay was a matter of equity or was
to be decided on equitable principles upon which the Court would
exercise its discretion. Towards this such a discretion should not be
exercised in such a way as to bar a litigant from finding his remedy
for the infringement of his rights unless he has done something in or
towards incurring the costs or in seeking to escape from paying them
Court's disapproval. See Argus Printing and Publishing Co. Ltd v
Rutland 1953(3) SA 446.
criteria, if not requisites, were to be established in order to
investigate the propriety of ordering stay of proceedings; First
whether the party who has been ordered to pay costs incurred them by
reason of some abuse of process of the Court. Therefore it was to be
considered whether that party has either deliberately or through
carelessness occasioned unnecessary costs. And finally whether the
party that has contumaciously refused to pay the costs awarded
against him or was vexatious in withholding payment. See Calusa v
Minister of Justice 1969(1) SA 251.
Ntlhoki reinforced his stance by saying that the conduct of the
Plaintiff was paramount as decided in Kalil v Minister of Interior
1962(4) SA 755 at 758. That there were only few instances when the
right of staying principles had been exercised. This was where the
costs of former suit, had not been paid. Where the same relief was
claimed there had not been payment. Furthermore where a plaintiff had
harassed a defendant with repeated and unsuccessful actions for the
same relief. And finally where it had been shown that the action was
frivolous or vexatious.
advocated for an approach as follows: That there was not hard and
fast rule as to when previous costs should be paid. If non-payment of
the costs was vexatious, oppressive or mala fide the Court will not
allow the litigant to proceed before
to when previous costs should be paid. If non-payment of the costs
was vexatious, oppressive or mala fide the Court will not allow the
litigant to proceed before paying the earlier costs. If there was
mere inability to pay the Court may grant its indulgence to the
Applicant. There must be wilful refusal to pay the costs if the Court
is to order for stay of proceedings.
Court did not accept that it would be required to investigate the
merits (proper) of the substance matter even if it were to form a
prima facie view. It was more practical if the approach focussed on
the conduct of the parties as after the ruling on rescission and
award of costs. My concern would therefore revolve solely on the
prospects of whether the costs incurred by the Applicant would be
paid or not. In order to properly exercise my discretion I should not
go further than that.
opinion it has hence been demonstrated that the Respondent would both
be unable and/or was unwilling to pay the costs of the Applicant. As
to which is most accurate I need not decide. What is important is
that there is presently a greater risk that Applicant's costs (by
Respondent's own demonstration) will not be paid than not. This is
most unfair and unconscionable when the element of unwillingness on
that part of the Respondent cannot be ruled out. It is not conducive
to the justice in litigation but militates against that. The central
principle is that a party who has incurred costs be indemnified as
much as possible. This is unlikely in this case judging by the
attitude of the Respondent.
the attitude of the Respondent. I find that in my discretion, a
middle course still has to be steered as I will provide in the
alternative order that I will make presently. It is that which
affords the Respondent/Plaintiff an opportunity to prosecute his
claim and thereby does not close him out. The order that I make in
that direction is as follows:
is being directed to pay Applicant's taxed costs pursuant to the
writ of taxation dated 3rd August 1999 within 30 days henceforth
failing which he shall be interdicted from prosecuting his claim.
interdiction is hereby being issued against the Respondent/Plaintiff
proceeding in his main action against the Applicant/Defendant on the
following condition. That the Respondent/Plaintiff shall put up
security by means of a bond or a deposit of fees in a trust account
equal to the claimed amount equal to the taxed costs within 30 days
failing which he shall be permanently interdicted from proceeding
with his action.
is directed to pay costs of this application.
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