CIV/T/266/81 IN THE HIGH COURT OF LESOTHOIn the matter of :THE SOLICITOR-GENERAL Plaintiff vJACQUES JUAN FRANKEN N.O. DefendantRULING AND JUDGMENTDelivered 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
-2-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/unsympathetic
-3-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 inBarlows 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, 1981Annexure A Annexure BFor 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/266/1981IN THE HIGH COURT OF LESOTHO HELD AT MASERUIn the matter betweens: THE SOLICITOR GENERAL Plaintiffand 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 /2
page 2Liquidator(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 31.8.1981the Court discharged the Rule and the reasons for such discharge was filed on 9th September 1981..... /3
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 4namely 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 /6
page 6I 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.