CIV/APN/25/81 IN THE HIGH COURT OF LESOTHO. In the Application of : WESSEL JACOBUS INGRAM Applicant/Petitioner v YUNDAR CONSTRUCTION CO. (PTY) LTD. 1st Respondent M/S ROUGHTON AND PARTNER 2nd Respondent MINISTER OP WORKS N.O. DEPARTMENT OF WORKS AND DEPARTMENT OF ROADS 3rd Respondent MINISTER OF FINANCE N.O. (TREASURY DEPARTMENT) 4th Respondent DR. C.L. CHEN 5th Respondent STANDARD BANK LIMITED 6th Respondent BARCLAYS INTERNATIONAL LIMITED 7th Respondent LESOTHO DEVELOPMENT BANK LIMITED 8th Respondent RULING.
Made by the Hon. Justice M.P. Mofokeng on the 6th day of March, 1981. In this matter ray brother Cotran, C.J, granted a provisional Order of sequestration to the applicant on the 19th February, 1981. The respondents were to show cause why the provisional Order shall not be made final on the 19th March, 1981. Leave was also granted that the return date be anticipated on 24th hours' notice. A perusal of the Deputy Sherriff's return of service indicates that all the respondents were served with the copies of the said order on the 19th February 1981. I think I must draw attention to further orders made simulteneously viz, that the said order was to be published in a Government Gazette and a newspaper (Lesotho Weekly). On the 2nd day of March 1981 the 1st and 5th respondents caused to be served with the applicant's attorneys, a document entitled "Notice of intention to Oppose" the said application made and granted ex parte to the applicant as /2.
-2- explained in the proceeding paragraph. The said document at the same time notified the applicant that the return date was anticipated for "Wednesday 4th March 1981." On the 4th day of March a document styled "Notice of set down" was served at the offices of the applicant's attorneys and also filed of record. These notices, I may state, were addressed to the Registrar of this Court and applicant's attorneys only. The opposing affidavit by the 1st respondent was served on applicant's attorneys on the morning of the 4th March 1981 and was also filed of record on the said date. Mr. Lombard on behalf of the applicant took the following points in limine and submitted that the matter should not be proceeded with. (1) There was no annexure "T" referred to in the opposing affidavit and there was therefore no resolution as alleged authorising the 1st respondent to make the affidavit which he purported to do on behalf of the 5th respondent. Mr. Beckly replied and said that the annexure referred to was inadvertently omitted. He proceeded to hand it into Court but it was not properly stamped. However, Mr. Lombard had other criticisms levelled against it. These need not be mentioned here. (2) Mr. Lombard said that the order specifically directed that the said order be published and there was no proof that this had in fact been done. Mr. Beckly replied that the publication of the order had nothing to do with the respondents. It may be that it is not the responsibility of the respondents to see to it that an order of court is published as ordered. But the publication of such an order is not necessarily meant for the respondents /3.
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(3) Mr. Lombard submitted that the Court will only hear an application of this nature only if all interested parties have been notified. If not, their rights can be affected without their knowing. The respondents (Other than the 1st and 5th) know that the date on which they must show cause why the provisional order shall not be made final is, the 19th March 1981. They are not aware right now that there are proceedings which might affect their legal rights. Mr. Beckly replies simply that the rest of the respondents, other the 1st and the 5th, are institutions and will therefore not be prejudiced by the action taken by the 1st and 5th respondents. There is no intimation, however, from those respondents to the effect that they will abide the Court's decision and until they do so this Court cannot presume that to be the position. They are entitled to be heard until date fixed by the order of the court has been extented or expired. (4) Mr. Lombard finally submitted that the opposing affidavit was only received in the morning of the hearing. No opportunity was afforded the applicant to study its contents and prepare himself properly. Instead the applicant is denied his most elementary right of replying to the serious allegations levelled against him in the opposing affidavit. Mr. Beckly could not deny that the applicant possessed such right. All he said was that there was now a dispute of fact; that applicant had obtained the provisional order by fraud. If the procedure advocated by Mr. Beckly were correct in this instant case, then all that the respondent is /4.
-4- entitled to do, is to make all manner of allegations against the applicant and ask that because of the serious nature of the allegations he levelled against the applicant the provisional order should be discharged. In my view the Court cannot deny the applicant the right to reply. It is not as though that were an indulgence. It is a right which the respondents cannot deny the applicant. The short-cut which the two respondents wished to take is hereby halted. The application that the Provisional Order granted on the 19th February 1981 be discharged is refused with costs and the Provisional Order as granted by my brother Cotran C.J. will continue to operate until it is either confirmed or discharged by an order of Court, M.P. MOFOKENG JUDGE. For Applicant : Mr. Lombard instructed by Messrs S.C. Harley & Co. For 1st & 5th Respondents: Mr. Beckly instructed by Messrs Mohaleroe, Sello & Co.
