HIGH COURT OF LESOTHO
MPHALANE FIRST RESPONDENT
DUROW SECOND RESPONDENT
by the Honourable Mr. Justice T. Monapathi on the 18th day of August
1999 Plaintiff filed a claim in a simple summons against the two
defendants. The First Defendant is an attorney of this
practising as N Mphalane & Co. The attorney has represented the
Second Defendant at all material times and the latter
trading as J & E Enterprises. She was a lady residing at
Ladybrand in the Republic of South Africa but traded at Cathedral
Area, Maseru City.
was for the following:
of a total sum of M10,000.00 held in trust by 1 st Defendant by
reason of judgment of this Honourable Court in CIV/T/599/97.
thereon at the rate of 18% from 1st August 1998 after date of
payment to date of payment following on judgment in C of
4/98 delivered on 31st July 1998.
of a total sum of M 10.970.00 paid at 1st Defendant for transmission
to 2nd Defendant in CIV/T/599/98 this amount to be
paid by the
Defendants jointly and severally, the one paying the other to be
thereon at the rate of 18% from 1st August 1998 to date of payment.
and/or alternative relief.
become clear the matter had a history in the Courts dating before the
10th March 1999 when the present summons was filed
hence the need to
be more elaborative in dealing with common facts. Part of the history
was my own judgment in the said CIV/T/559/97
in which the First
Defendant was Plaintiff and the present Plaintiff was Defendant. My
judgment was dated the 9th December 1997.
It was that judgment that
was appealed by the present Plaintiff in C of A (CIV) 4/ 98.
Defendant filed a notice of appearance to defend and power of
attorney on the 18th March 1999. This was followed by an
for summary judgment which was received on the 22nd March 1999. A
date of hearing was appointed as the 29th March 1999.
postponements followed during which period an opposing affidavit of
the First Defendant supported, by an affidavit of the
Defendant, was served on the Plaintiff. The affidavits were filed on
the 19th April 1999.
I had to
consider the affidavit in support of the application for summary
judgment. It followed the usual form by stating that the
swore positively to the facts verifying the cause of action. It
stated further that the Defendants owed the Plaintiff
mentioned in the summons as well as interest thereon in the following
circumstances. The Court in CIV/T/599/97 had
ordered the Plaintiff to
pay the judgment creditor (Second Defendant) an amount of M10,990.00.
This the Plaintiff duly paid. This
was shown by cheque - annexure
"LP1". That furthermore the Court had ordered that the
Plaintiff should pay monthly amounts
of M2,000.00 from the month of
February 1998 to June 1999 into the Trust Account of the First
Defendant until the appeal (in C
of A (CIV) NO.4 of 1998) was heard
in June of that year. This amounts the Plaintiff duly paid in to a
total amount of M10,000.00
as shown in annexure "LP2".
that the cheques annexed ran short by one other of M2,000.00. This
omission Mr Monyako for Defendant owned up. Otherwise
it was common
cause that the said outstanding amounts and the other sums were paid.
Plaintiff went on to say that when the appeal
under C of A (CIV) No
4/98 was decided the orders for payments of the above amounts were
set aside with costs by the Court of Appeal.
The Plaintiff had been
informed by his lawyer and he verily believed that a demand had been
made to the First Respondent to pay
back the amounts (the above
amounts totalling M20.700.00) which sums were declared to have
wrongly paid by the Plaintiff inasmuch as the High Court judge's
orders pertaining thereto had been in error. The First Defendant
to the date of the affidavit not made any payment despite demand. The
Plaintiff finally prayed for granting of an Order in
terms of the
summons because he verily believed that the Respondents had no bona
fide defence to the claim and that furthermore
appearance to defend
had been entered solely for the purpose of delay and in "fraud
of the judgment in C of A (CIV) 4/98."
papers were filed by the Defendants. The supporting affidavit of the
Second Defendant merely confirmed the contents of
Defendant's main affidavit in so far as it concerned her in the case.
She asked for the application for summary judgment
to be dismissed
with costs on Attorney and client scale. It was important to note
that while the amount of M10,970.00 was to be
paid directly to the
Second Defendant the other amounts consisting of monthly payments of
M2,000.00 were to be paid into the First
Defendant Attorney's trust
account. What the judgment of the Court of Appeal implied about the
fate of the two funds was debated
by Counsel. I will comment about
that later in this judgment.
I had to
consider the main opposing affidavit by the First Defendant. After
seeking that it be noted that he made the affidavit
on the strength
of instructions from his client (the Second Defendant), he responded
to the Plaintiff's affidavit in the application
for summary judgment
and replied as follows: That as Second Defendant's attorney he had a
bona fide defence. That the defence derived
from the fact that the
Plaintiff was indebted to the Second Defendant "in the huge
(some) of money" which appeared in
the acknowledgment of debt
signed by the Plaintiff on the 16th December 1997. A copy of the
acknowledgment was annexed and marked
"NM1". It was
important to note that this was the acknowledgment of debt which the
Court of Appeal had commented about
at page 11 of the
where the Court said:
"The Respondent also attached to her affidavit a document
purporting to be acknowledgment of debt signed by the Appellant.
reply the appellant admitted signing the document but stated certain
features of the document which cast doubt on its authenticity."
paragraph ended up by saying that:
Respondent's attitude was that the appeal was being pursued merely to
delay payment and consequently asked that the stay of
It was on
account of the above statement (about acknowledgment of debt) that Mr
Monyako for Plaintiff urged that the document be
found to have been a
bad document which would not form a basis of a good defence in the
circumstances and in that the second Defendant
counter-claim in due course on it (the acknowledgement), to the
amount shown therein, inasmuch as it reflected that
owed the Second Defendant. It therefore showed as the First Defendant
averred he had a bona fide defence. The First
averred that he was instructed to retain the money particularly
M10,000.00 until the case was finalized. This
was said in paragraph
eight (8) of the affidavit. It was this statement which formed a
basis of a later argument by the Defendants
that the moneys were held
as a lien for funds owed by the Plaintiff.
Defendant went on to submit in his paragraph six (6) of the affidavit
that there was still a case pending before the High
(CIV/T/559/97) in which the summary judgment was set aside. He felt
that the fact that judgment
in favour of the Second Defendant had been set aside did not mean
that the Plaintiff succeeded to have the claim dismissed
that case was still pending and still had to be finalized.
the M10,000.00 which was paid by instalments the amount of M12,000.00
as First Defendant further averred the amount was properly
the Plaintiff as part of instalments towards liquidating the
indebtedness to the Second Defendant. That the fact that Plaintiff
paid by way of instalments as he argued supported the view that the
Plaintiff was indebted to the Second Defendant in the amount
reflected in the acknowledgment of debt. Here the Defendant was
forgetting that it was never recorded that the Plaintiff had paid
pursuance of that acknowledgment save that he paid in pursuance of a
later acknowledgment which he made before the High Court (in
application for stay). Hence the order which I made which was in the
to pay M10,970.00 which he acknowledged he owed.
pays with effect from February 1998 a sum of M2,000.00 to be placed
in trust with Creditor's lawyer until (the appeal)
heard in June.
property attached to be returned to the debtor (Appellant) at the
place where they were taken.
Sheriff to put before the Registrar a bill of costs within 30 days.
of proceedings to the Court of Appeal to be prepared before the end
of March 1998 failing which execution will proceed.
of the application are awarded to the Respondent (the Respondent in
this appeal. (My underlining)
did the Court of Appeal rule that the Order was incomprehensible it
said it failed to appreciate the rationale of the Order
disapproved. It denied that the Order was completely irregular and
fell to be set aside. This meant that unless there was something
the Defendant could not genuinely say that payment was in pursuance
of the original (signed) acknowledgment of debt.
the Defendant said that he submitted that on the basis of what he had
said there was a bona fide defence towards this claim
the application for summary judgment had to be dismissed with costs
on Attorney and Client scale because it was misconceived.
I needed to
comment about a few things before I came to what appeared to be main
defence of the Defendants.
of Appeal made several valuable comments in its judgment in C of A
CIV/4/98. One of them was that the confusion, the discrepancies
the claim and the complexity of the matter made the application for
summary judgment most inappropriate in the circumstances
quantum of the Plaintiffs claim was not so clear as to be readily
Court was indirectly called upon by Mr. Monyako to take one of the.
Court of Appeal's comments as a basis for the conclusion
CIV/T/599/97 was no longer pending. This was said because it appeared
there was a wrong power of attorney. It was the
one given by one
Letsema Emmanuel Letsoela to Attorney Mphalane (First Defendant),
attached o the Plaintiffs summons In that power
of attorney the said
Letsoela had said he empowered the Attorney duly authorised by virtue
of resolution dated 6 November 1997.
resolution was not attached and it was not clear whose resolution it
was alleged to have been. Indeed this would be a serious
against the very foundation of the Plaintiffs claim. But I did not
see it as a declaration that for that reason, the
claim had lapsed or
no longer existed.
be that a lot still had to be said against the claim in CIV/T/599/97.
That statement was said by the Court of Appeal (if
not in obiter) but
to show that several good defences were open to the Defendants thus
militating against the grant was a summary
judgment which was "an
extraordinary remedy since it enables a Plaintiff to obtain judgment
against a defendant without a
trial despite the defendant having
entered an appearance to defend". I felt that, consistent with
the finding I made that
the claim was still pending, Mr. Monyako
could even resort to that request for particulars which was
unanswered and remained so
to date (that is since the 24th November
1997). This he could do by compelling the Second Defendant to furnish
clear that there was one question to be answered. The question would
be premised on that CIV/T/599/97 was still pending
before this Court
and the acknowledgment of debt formed a basis or support for the
above claim. The question would be: Can the
two similar claims be
allowed in one Court at the same time? That is the claim in
CRI/T/599/97 and the counter-claim. It is because
as the First
Defendant said in paragraph 7 after correctly stating that the claim
in CIV/T/599/97 was still pending:
"In any event the Second Defendant has intended to counter-claim
in this proceedings to the amount Plaintiff owes to her as
in the Acknowledgment of Debt."
not withdrawn the action nor did he say he intended to. How can the
live side by side (albeit in different cases)? Because virtually that
intended counter-claim would amount to a further claim
of the same amount in CIV/T/599/97. A classical lis pendens case (see
MOSTERT vs VON HIRSBERG 1959(3) SA 956 (O)).
to me that the counter-claim would be untenable. If it was untenable
it could not be well-founded (See also GROENWALD
vs FLATTEN BOSCH
FARMS (PTY) LTD 1976(1) SA 548 (c). That situation (of the intended
counter-claim) did not contain a defence,
strictly speaking, in
favour of the Defendant's. Supposing it did Could it be a good basis
for holding the amounts claimed as security?
Was it a good defence,
otherwise, in the circumstances of this case that the amounts held by
or paid over to the Defendants were
retained as security?
Mphalane submitted that the Second Respondent had a right to retain
the money as a lien for indebtedness of the Plaintiff against
Second Respondent. He said he was instructed by the Second Respondent
to exercise the right to retain the said moneys until
the matters had
been finalized. I was referred to and old edition of the work by JTR
Gibson PRINCIPLES OF SOUTH AFRICAN LAW at
page 244. The authors had
become D. Hutchison B Van Heerden, DP Visser and C G Van Der Merwe.
In the latest edition at page 342
the learned authors said:
"A right of retention or lien. A right of retention, jus
retentionis, generally referred to as a lien is a right tacitly
conferred by law on a person who is in possession of the property of
another person, on which he has expended money or money's worth,
retaining possession of the property until he has been compensated".
the learned's author's definition as underlining specifically that
money or money's worth must have been expended on the
entrusted to the one holding a lien. The learned authors on the
mentioned page made a distinction between various types
of liens such
as salvage and improvement liens, debtor and creditor liens. While I
noted that the Plaintiff accepted that the Defendants
receipt and possession (which they maintained) of the moneys I found
no other characteristic that made the moneys subject
of lien of any
kind by definition or otherwise. See also highly instructive case of
UNITED BUILDING SOCIETY v SMOOKLER TRUSTEES
1906 TS 623 and other
cases cited at the mentioned page in the learned authors' work.
attorney can hardly say he had moneys (funds) of third person as
being for improvement nor for salvage nor as that of his own
In addition one (a client such as the Second Defendant) would not
give a valid instruction to his attorney to retain as
paid in to discharge a debt that ended up not being proved such as
the Plaintiff's alleged debt.
attitude was that the moneys held by the First Defendant could only
have been held in some form of security for a future debt
had been application to Court for confirmation by Court of that
"lien" I said so in the alternative and the
event that I
was wrong in saying that I observed no existence of a lien in the
special circumstances of the moneys claim by the
Even if the Defendants had been bona fide possessors the right of
retention seemed remote despite any straining
of principles. If the
straining of principles could be thought to be justified in the
absence of a case directly on the point,
it would still be even more
difficult because :
"Tacit Hypothecs are not recognized except where the law makes
express provision and they are strictly interpreted."
p 110. See SOUTH AFRICAN LAW COMMISSION Research Series 4 Edited by
S.I.S van Tonder page 913".
needed to be reminded of the purpose for which the moneys were paid
to the two Defendants. This hardly suggested any circumstances
could give rise to a lien. See also LECHOANA vs CLOETE AND OTHERS
1925 AD 536 at 547 where the aspect of improvements to
be made on the
property was emphasized even concerning the so called bona fide
possessors. Incidentally attorneys have lien over
documents to ensure
payment of stipulated fees. To repeat, they would have no such right
over funds of third parties i.e. non-clients
or members of the
general public even if they were debtors to their clients.
I had to
observe what I regarded as the most important consideration. This was
a fact that was common cause and which in my mind
whatever would constitute a defence to Plaintiff's action. It was
that the Court of Appeal invalidated the basis
upon which the moneys
were paid over to the Defendants by saying the Order of the High
Court was irregular. This was a very clear
I did not
accept Mr. Mphalane's submission that the Court of Appeal's order had
to go further and say that the moneys be paid back
to the Plaintiff.
This was more than implied. I felt that it was against public policy
to emasculate a decision of that Court by
a not too clear right of
retention which (right) in order to have any life at all had to have
more done to it. It was that for
any kind of security to exist over
the moneys it had to be confirmed or applied for in Court. I found it
difficult to accept that
the moneys held by the Defendants were to be
retained without an Order of Court in the light of the Court of
concluded that there were no facts proved or to be proved that would
establish a bona fide defence in favour of the Defendants.
dismissed the opposition to the application for summary judgment with
costs. Costs of the failed admission of Plaintiff's replying
affidavit were awarded to the Defendants.
Applicant : Mr. A. T. Monyako
Respondents: Mr. N. Mphalane & Co.
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