CIV/T/266/81
IN THE HIGH COURT OF LESOTHO
In the matter of :
THE SOLICITOR-GENERAL Plaintiff
v
JACQUES JUAN FRANKEN N.O. Defendant
RULING AND JUDGMENT
Delivered by the Hon. Chief Justice, Mr. Justice
T.S. Cotran on the 4th day of November 1981

This is an application for summary Judgment in terms
of Rule 28(2) of the High Court Rules in which the plaintiff,
the Solicitor-General on behalf of the Ministry of Works in
the Government of Lesotho, issued a summons seeking to eject
the defendant, the provisional liquidator (and an attorney
of this Court) of Yunder Construction(Pty)Ltd from the stretch
of main public road between St. Michaels and Molimo Nthuse,
The application was served upon the provisional liquidator on
the 12th October 1981. The application was set down for
hearing on the 19th October 1981,
By sub-rule 3 the defendant has two options; either
to give security, or satisfy the Court by affidavit to be
delivered before noon not less than two days before the
hearing of the application that he has a good defence.
The defendant has done neither of these things,
timeously or at all, but yesterday the defendant made an oral
application for an adjournment after counsel for the plaintiff
gave him an indulgence from the 29th October 1981 to the 3rd
November 1981.
The object of the rule is to enable a plaintiff whose
claim falls within certain defined classes, including
ejectment, to obtain Judgment without the necessity of going
to trial in spite of the fact that the defendant has intimated,
by delivering notice of intention to defend, that he intends
/raising

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raising a defence. The procedure is designed to prevent
defences of no substance, and dispose of the case without
putting the plaintiff to the expense of a trial.
The word used in the rule is that such affidavit
"shall" etc.. The word "shall" is not however defined in the
Rules but by s.14 of the Interpretation Act 1978 the word
"shall" shall be construed as imperative.
To grant an adjournment under this rule makes a mockery
of its prime object. I asked Mr. Franken for the reasons. He
said that negotiations are going on with the other side and
the World Bank and a successful settlement may be reached soon
which would be in the interests of all the creditors. If not
he will submit an affidavit by the following Monday. Mr. Tampi,
who is involved in the negotiations accordingly to Mr. Franken,
does not agree and submits there is absolutely no defence and
that the defendant is plying for time: every day that passes
not only increases the expenses and damages the plaintiff will
claim against sums due to him, if any is left at the end of
the day, thus reducing further the creditor's kitty for the
only asset is the defendant's contract with the plaintiff,
but also a great detriment to the public interest which
demands progress on the road. The plaintiff has already given
the defendant such a chance and it is clear to me from the
papers that his situation is hopeless.
The defendant did not seek condonation. In Lesotho we
have specifically provided in Rule 59 that the Court shall
always have discretion to condone breach of the Rules in the
interests of Justice to avoid being hampered by precedent. I
do not wish to go in detail into the philosophy behind the
rule drafted by Isaacs AJ and I at the material time save to
say that a major consideration was the fact that we have many
lay litigants in our courts who are unable to read English,
and if they are, do not appreciate the niceties of court
procedure. It is an entirely different matter when it comes
to counsel and attorneys, especially if experienced and of
many years standing such as Mr. Franken, If such an
application had been made, it too would have been refused.
I thought the plaintiff is entitled to Judgment right
away.
I asked the defendant what he proposes to do if I was
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unsympathetic to an adjournment and he replied that he would
ask leave of the Court to call oral evidence. I was reluctant
to allow this, for whatever that defence was, he had much more
than ample time to file it. However, I took time to consider
the matter overnight during which I have re perused the papers
(affidavits annexures and heads of argument etc..) and read
orders and Judgments that this Court has passed in the same
matter. My first impressions were confirmed.
In the time available to me I have not been able to
write a comprehensive Judgment but Mr. Tampi's arguments are
sound and I adopt them as if they have been incorporated in
this Ruling.
The defendant as I said sought leave to give viva voce
evidence. In order to have absolutely no mistake about the
defence the defendant said he would raise when he addressed
me from the bar yesterday I will allow him,if he wishes to
take the oath, such evidence to be confined to Mr. Franken only,
in order to have on record what he said.
Having heard Mr. Franken on oath and further arguments
from the bar I am of opinion that, quite apart from non
compliance, that there is no substance in the defence or
alternative defences raised (see the Judgment of Rooney J in
Barlows OFS v. Makhoza, CIV/T/122/81 unreported and cases
cited) which have been adequately answered by Mr. Tampi.
Mr. Franken's evidence when transcribed and Mr. Tampi's heads
of argument will form annexures to this Ruling.
Judgment is accordingly entered for the plaintiff as
prayed in the summons.

CHIEF JUSTICE
4th November, 1981
Annexure A
Annexure B
For Plaintiff : Mr. Tampi
For Defendant : In Person

Annexure A
4th November 1981:
JACQUES JUAN FRANKEN : My Lord. The evidence I shall give
to this Court will be the truth and the whole truth
and nothing else but the truth so help me God. My
Lord I have in brief written down the defence of the
defendant to this action My Lord which if we were
allowed time to lodge an opposing Affidavit would have
made or consisted of this basically, the essence of it.
I am just going to read it out very slowly and just
that would be the defence of the defendant. My Lord
the defendant denies that the plaintiff is entitled
to the relief sought or that it has breached the
contract between the plaintiff and it further denies
that the plaintiff is entitled to cancel the agreement
on the ground mentioned or at all. Alternatively to
this My Lord the defendant alleges that the plaintiff
illegally attempted to repudiate the contract and it
pleads further that it refuses to accept such
repudiation. As a further alternative to this My Lord
and only if this Honourable Court should find that the
defendant did breach the contract as alleged, then the
defendant pleads that the plaintiff by his conduct
condoned such breach or breaches and elected to
continue with the contract or agreement and is there-
fore debarred from cancelling the contract on the
ground of such breach or breaches.
My Lord that in essence is the defence of the
defendant to the allegations raised by the plaintiff.
Am I excused My Lord?
H.L. - That's all?
Thank you.

Annexure B
CIV/T/266/1981
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter betweens:
THE SOLICITOR GENERAL Plaintiff
and
JACQUES JUUAN FRANKEN N.O. Defendant
(In his capacity as Provisional
Liquidator of Yunder Construction
Co., (Pty)Ltd.)
(In Provisional Liquidation)

This is an application for summary Judgment in terms
of Rule 28(l)(c) of the High Court Rules.
In the main Plaintiff relies on the affidavit of the
Permanent Secretary Ministry of Works and sworn the 30th day
of September 1981, hereinafter referred to as Ntholi's
affidavit and the documents annexed to the application.

Consequent on the defendants' appointment as Provisional
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page 2
Liquidator(See paragraph 9 of Ntholi's affidavit) the
defendant adopted the contract.
The legal position then obtaining had been succintly set out
in Keating on 'Building Contracts' Fourth edition pages 189
& 190.) quote "If the trustee or liquidator adopts the contract
and decides to complete, he steps into the shoes of contractor
and the contractor's property subject to the rights of the
employer unless they contravene the brankptly law. Thus
if the trustee in completing is guilty of delay or other
default, giving rise to a right forfeiture the right can be
validity exercised against him" end of quote.
Refer to clause 63 of the General Conditions of Contract. EX A
especially to lines 6 and 7. The basic requirement before the
forfeiture clause is put into operation is the certificate of
the Engineer. That document is dated 9.7.1981 and annexed and
marked EX 'C'. The lacklustre performance of the Liquidator
may the total absence of any work at the site are effectively
spelt out in paragraph 4, 6(2) 8, 9, and the postcript to
EX 'C'.
The Defendant refuses to leave the site and the works. By
EX 'D' the employer forfeited the Contract.
Refer to paragraph 16 of Ntholi's affidavit on 31.7.1981, the
defendant obtained an ex parte Rule Nisi allegedly on the
claim that he should not be dispossessed of the road works so
as to jeopardise his builder's lien over the said road works.
The plaintiff's answering affidavit is EX 'F' on 31.8.1981
the Court discharged the Rule and the reasons for such
discharge was filed on 9th September 1981.
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page 3
11.
In paragraph 20 of EX F there is an unequivocal undertaking
by the Government of Lesotho that if any sura is found due
due and owing at the end of the day the same will be promptly
paid to the Contractor.
Since the whole matter arises,out of a contract the court
should look to the terms of the Contract. In terms of clause
63(4) of EX A, the plaintiff "shall not be liable to pay to
the contractor any money on account of the contract until the
expiration of the period of maintenance and thereafter until
the costs of completion and maintenance damages for delay in
completion (if any) and other expenses incurred by the
employer have been ascertained and the amount thereof
certified by the Engineer. The contractor shall then be
entitled to receive only such sum as the Engineer may certify
would have been due to him upon due completion by him after
deducting the said amount" end of quote.
If follows from the foregoing clause that contractor is not
entitled to make any claim until the period mentioned in
paragraph 12 had arisen. Any claim that he advances now is
premature as his claims have yet to be quantified.
Moreover clause 53 of EX A as amended by A-15 of EX B,
clearly provides that all constructional plant, Temporary
Works and materials owned by the contractor shall when brought
on the site immediately becomes the property of the employer.
It is trite fact that in terms of clause 63(4) of EX A quoted
in paragraph 12 hereof, the quantum of any sum which may be
ascertained after the happening of the event specified therein,

page 4
namely the completion of the works and the expiration of the
period of maintenance as aforesaid.
It is a sad fact that the Liquidator of an insolvent Company
with no assets whatsoever save this contract (see paragraph 25
of Ntholi's affidavit) is persisting in the wholly unmeritorious
and delaying tactics and thus perhaps unwrittingly delaying
the eventual payment of any sum which at the end of the day
may be found to be due to him. This is a classic case of
biting the nose to spite the face.

The plaintiff is put to irreparable harm and losses by the
totally unjustified actions of the defendant in refusing to
vacate the works after the lawful forfeiture of the contract-
paragraph 23 of Ntholi's affidavit.
It is a trite fact that constructional costs are escalating
the world over, and any further delay in completing the works
will cause irreparable harm and loss to the plaintiff apart
from inconvenience to the public who uses the highway. In the
rainy seasons the programme of macadamising the surface of the
road will be delayed all the more.

page 5
22.
The fact that the concept of forfeiture clauses in Engineering
and Building contracts is not unknown in South Africa can be
established by reference to the following quotations from the
Law of Building Contracts and Arbitration in South Africa
Mackenzie and Shapiro-Second Edition.
At page 39-
"The time when rights under a forfeiture clause accrue depends
in each case on the wording of the clause itself.
The more common defaults specified are failure to proceed with
reasonable diligence.

On the other hand clauses in terms of which materials and plant
rest in the employer for the duration of the contract are
enforceable and may be brought into operation against creditors
of the contractor. (See paragraphs 14 hereof and clause 53 of
EX A as amended by A-15 of EX B).
Again at page 49 of the book referred to in paragraph 22 hereof
occurs this passage under the rubric 'courts' power to order
restoration to owner. A lien is merely a form of security. A
right to retain the property or thing until payment has been
made.
A court has the power to order the property to be restored to
the owner. The locus classicus on this branch of the law is
the decision of Tindall J in Spitz v, Kesting 1923 WLD 45
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page 6
I quote "Even where the claim in respect of which jus retentionis
is made in good faith the court has the power to order delivery
to the owner against adequate security. Each case will depend
on its particular facts and the court, in exercising its
discretion, will have regard to what is equitable bearing in
mind that the owner should not be left out of his property
unreasonably and on the other hand should not be given
possession if his object is after getting possession, to delay
the claimants' recovery of expenses".
As far as the question of furnishing security is concerned it
does not arise as Government of Lesotho is the party owing
money to the defendant, in the event of anything being found
due to him at the end of the day. For these reasons the court
is requested to grant summary judgment as prayed.,
Maseru.
26 October 1981  (sgd)    .       
K.R.K. TAMPI,
Crown Attorney,
Attorney for Plaintiff,
Law Office,
Kingsway,
Box 33,
MASERU.