CIV/APN/51/83
IN THE HIGH COURT OF LESOTHO
In the Application of :
BOB LEHLOHONOLO MOHAPI Applicant
v
KITIMI PAULUS TLALI Respondent
JUDGMENT
Delivered by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 28th day of March, 1985
On the 2nd March 1983 Mr. Mlonzi on behalf of the applicant, an incola, moved the Court Ex-parte for orders in terms of Rule 6 of the High Court Rules to attach a Mercedes Benz, the property of the respondent, a peregrinus, and also his arrest, pending the
institution of an action in which applicant would, as plaintiff, claim payment of some M3000 in commissions allegedly earned from
October 1982 to December 1982 as sub agent on insurance business underwritten by Anglo American Life Insurance company in Lesotho,
through the respondent, who was then the appointed commission agent of the company in Lesotho.
As I was reading the papers Mr. Molyneaux requested audience with me immediately which request was granted, and he came along trailing the respondent with him. The immediate picture that emerged at the time was that the applicant and his attorneys, by means either foul or fair, it did not matter at the time, had already seized the applicant's passport thus effectively preventing him for leaving the country. I refused to entertain the application before the applicant's passport was released. It was done a few minutes later
and on resumption of argument I ordered attachment of the Benz to found jurisdiction but declined, in my discretion, to order the
respondent's arrest. The return date was to be the 14th March 1983 and a condition of the confirmation of the attachment on the property was that summons be issued by applicant and
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served on respondent attorneys by 11th March 1983. The application papers had been served on Mr. Mplyneaux in my chambers. The summons was timeously served as directed.
The respondent who said his name was Kitimi Paulus Tlali and not as given in the application averred that the relation between the parties was not what the applicant alleged. Applicant was to receive part of the respondent's commission from Anglo American Life Company but only upon the company accepting proposals on clients introduced by the applicant who would be paid his entitlement only upon the company itself crediting the respondent with the commission. This takes a little while. The applicant had no relationship with the company as such. The respondent admitted the applicant had introduced business on the life of four persons who were acceptable to the insurers and that applicant had in fact earned commission on these of which only M201.00 (not M3000) remain outstanding. This amount he is prepared to tender. He objects to the attachment of his Benz (it is on hire purchase) or to the arrest of his person until Judgment in the action for this will deprive him from earning a living which frequently brings him to Lesotho to service Anglo American Life policies already in existence.
The applicant has not seen fit to make a reply and I am by far more impressed, at any rate on paper, with respondent's oath than with the applicant, who appears to have recruited the service of a policeman, or someone posing as a policeman, to effect, by strong arm methods without, initially at any rate, getting a court order thus causing the respondent harassment.
I require the respondent to furnish security in the sum of M750 which could take one of three forms:
An undertaking in writing to the Registrar from his attorneys to make the above sum available should Judgment be given in applicant's
favour, or
A bank guarantee for the same sum, or
Cash paid into Court.
Upon fulfilment of any of these conditions the respondent's vehicle is to be released.
The applicant has not in my view been frank with this Court and his modus operandi smacks of a bully taking unnecessary advantage of a bona fide foreigner. I shall deprive him of his costs. Each party will pay his own costs.
CHIEF JUSTICE
28th March 1983
For Applicant: Mr.Mlonzi
For Respondent:Mr.Molyneaux
