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CIV/A/3/99

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

ASSOCIATION
OF CHINESE MERCHANTS

AND
MANUFACTURERS OF LESOTHO APPLICANT

and

YAN
PEN-HE 1ST RESPONDENT

WEN
YOU-MING 2ND RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 4th day of November
1999

On the
2nd September 1999 a rule nisi with an interdict for temporary
closure of a business, at Butha Buthe, allegedly owned by
the First
Respondent was issued. Application was made for discharge of the
rule. Argument followed.

Although
the notice of motion was not filed strictly in accordance with High
Court Rule 6 of the High Court Rules it later became
clear, however,
that the intention was to attach the First Respondent's property in
order to found jurisdiction. The Second Respondent
who was running
the business had said he

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had
purchased it from the first Respondent.

I agreed
with Mr. Sooknanan for the Second Respondent that the Order which
closed the shop was extremely prejudicial to the Second
Respondent.
Secondly, that it was clear and it had been clear to the Applicant
when he filed the application that the First Respondent
was out of
the jurisdiction of this Court. Thirdly, that it was said that the
First Respondent had been somewhere in the Republic
of South Africa
at an unknown place, the latter which I abundantly bore in mind.

The
requirements of the Rule 6 are such that the property is attached to
enable to bring action against the perigrinus as the First
Respondent
was alleged to be. - vide sub-section 6(1). The other requirements
found in sub-section 6(2) are that the Applicant
should have a prima
facie case. Furthermore that the Applicant itself (being association
which was registered in Lesotho) was a
incola and the Respondent was
a perigrinus. If prima facie means a view that there appeared to be a
cause of action and one that
should have been apparent when the rule
nisi was first applied for ex parte, then the first requirement was
quite well satisfied.

For the
purpose of my decision I did not have to decide whether the Second
Respondent who was a third party was telling the truth
when he said
he bought the property from the First Respondent. The Second
Respondent's answer to the application indicated two
things at least.
The first one was that there was a dispute about the ownership of the
property. The second one was that the Second
Respondent was in
control of the property and most importantly aligned to that was that
he had an interest and some right to the
property. He may turn out to
be untruthful in what he said namely that he was purchaser of the
business. But that was not important
for the purpose of my decision.
That is at this stage when the

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First
Respondent had unsuccessfully been served with all of the papers.

What
concerned me most was the fact that a summons which had been issued
by the Applicant (which had been a condition for granting
the Order
of attachment) had only cited the First Respondent as defendant while
it had been known to the Applicant that the Second
Respondent was in
control of the property. Not only that. The Second Respondent had
informed the Applicant that he had bought the
property and the stock
in the trading concern. Then if he had been cited he would have been
made a party to the action and consequendy
he would easily have been
served because he was in Lesotho minding the business. In the present
circumstances failure to cite that
Respondent invited more criticism
than that of non-joinder. It will be apparent later in the judgment.

The main
problem then became the fact that he summons remained unserved
because the First Respondent was not inside the country.
Then came,
as Mr. Sooknanan suggested, the wisdom of sub-rule 6(2)(b) which
says:

"(d) The applicant may in the same application apply for leave
to serve defendant by Edictal citation".

As Mr.
Sooknanan rightly said the rule was meant to facilitate service on
the Respondent in a typical situation where as with First
Respondent
he could not be found but where it was suspected that "he was
somewhere in Republic of South Africa" at a
place unknown to the
Applicant. I observed that had the Applicant sought leave to serve
First Respondent by Edict it would still
have been entitled to do so
as long as the application was still pending. Hence the use of the
word "may". It suggest
that the Applicant may not only seek
for leave at the time of filing the application but it would still do
so afterwards as circumstances
permitted.

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Even the
application for service by Edict came by way of an amendment to the
application the Court could have been reluctant to
refuse such
application. The Applicant however stubbornly contended itself to
having an attempt to serve the First Respondent at
the place of
business where it revealed that that respondent was out of the
country.

A
decisive event or a crunch had been that the First Respondent
remained unserved and the interdict remained not only hovering over

the head of the Second Respondent but it clung to the Second
Respondent and remained stuck as long as the rule remained
undischarged
it became prejudicial in the circumstances. But then
regrettably the interdict was intended to facilitate issuing of an
action
by founding or confirming jurisdiction in an action which the
applicant intends to bring against such perigrinus.

I did not
therefore see why the Applicant or his Counsel was not able to
comprehend the depth of the following question. What happens
to the
Order of attachment (interdict) as long as the First Respondent
remained not served and more so when the sub-rule 6 (2)
(d) enable
that he could still be served by Edict? It ought to be understood
that both the application to sue by Edictal citation
or to attach
property and confirm jurisdiction are relief sought as a preliminary
step in the proceedings. This justifies why
they are granted ex
parte. See THE CIVIL PRACTICE OF THE SUPREME COURT OF SOUTH AFRICA
Van Winsen et al-4th edition page 232, 310
and 311.

As long
as the Applicant conceived of no other way of serving the First
Respondent except service at the business premisses when
it knew that
the First Respondent was not within this jurisdiction I thought the
prejudice on the Second Respondent ought not be
permitted because it
became unjustified. I repeat that it

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may turn
out that the Second Respondent was a liar when he said he haad bought
the business. The interdict was not achieving any
purpose in the
circumstances and it ought to be discharged with costs to the Second
Respondent. That was what I ordered on the
23rd September, 1999.

T.
Monapathi

JUDGE

4th
November, 1999

For the
Applicant : Mr. Khasipe

For the
2nd Respondent: Mr. Sooknanan