IN THE HIGH COURT OF LESOTHO
In the Application of :
OCRIM S.P.A. Applicant
MARTHA MARGRIETHA BURGER t/a
ENGINEERING 1st Respondent
THE MINISTRY OF AGRICULTURAL
AND MARKETING OF THE GOVERNMENT
OF LESOTHO 2nd Respondent
BINNIES & PARTNERS - LESOTHO 3rd Respondent
Delivered by the Hon. Mr. Justice M.P. Mofokeng on
the 16th day of April, 1986
This is an application for an order in the following
That the rules relating to the forms andservice be
dispensed with in terms of Rule8(22) and that this matter be
heard as oneof urgency.
That the Order granted by this HonourableCourt in
Case No. 121/86 on 10th April1986 be end is set aside;
That the first Respondent pay the costs ofthis
That the Second and Third Respondents paythe costs
hereof in the event of themopposing the relief sought herein;
Granting other or alternative relief.
Before the matter was argued in substance counsel for
the Respondents raised a point in limine that the person who deposed
founding papers had no authority to do so. However, without
much ado counsel for Respondents had to conceed that he was on the
application was therefore dismissed with costs to both
Then counsel for the Respondents made a second
application, from the bar, for a postponement. In support thereof he
filed an affidavit
by one Reginald Carlisle who described himself as
first Respondent's attorney.
Counsel for the Respondents wished to obtain the
services of counsel who was in another Court conducting a case. He
needed time to
prepare the necessary papers. There would be no
prejudice to the applicant if he were allowed a short time to enable
him to procure
the services of counsel to argue the application for
postponement. He further said that he had no knowledge of the
contained in the papers before Court. He said that the
main application by the applicant was a substantial one and that it
questions of law.
In answer Mr. Sulman S.C. said that it had not been
stated to the Court why the order previously granted by this Court
could not be
uplifted. As counsel for the Respondents had stated,
the order was a garnishee and this applied to Government through one
Ministries. He submitted that the Government in Lesotho cannot
be garnishee To that extent the order was defective. (See Lesotho
Glass Works Ltd. v Mabote Building Construction and Ministry
of Works, 1980(1) L.L.R. 89 at 94). That the order granted only
the previous week by this Court was in the nature of an interdict.
immediate effect on the Government and it was understood
in that way. He further stated that it was idle to talk
about being taken by surprise by counsel for Respondent. The
initiated these proceedings by not disclosing to the
Court why notice was not served on the Applicant; that arbitration
were to take place outside Lesotho. The order had been
snatched. Section 6(8) of the Rules of Court certain conditions must
with. In terms of section 6(7) it must appear just if
notice has not been given to the other side. This has not been shown.
have been anticipated that the other side would reply to the
allegations levelled against it.
The Respondent had not disclosed to the Court why notice
was not given. It was not disclosed that a tribunal had to be held
the jurisdiction of this Court. It was for the instructing
attorney to have particularly brought this attention to the Court.
reason is given for this non-disclosure.
The Respondents had been granted an interim order by
this Court the previous week. This was done by an ex carte
application. The terms of the Rules of this Court were not complied
with. This was a serious matter for not disclosing these matters
the Court. The other matters have already been mentioned above. In
the words of the counsel for the applicant in present matter
judgment had been snatched.
What, however, the Court considers to be more serious is
to garnishee the Government through one of its Ministries. This term
used by counsel for the Respondents. It was encumbered on the
counsel to have
acquainted himself with the decisions of this Court.
This important fact was not brought to the attention of the presiding
he granted the judgment that he did.
In seeking for an application for an adjournment it was
not even disclosed what the Respondents will say in
In the circumstances of this application it is equitable
and just to make an order for an upliftment of the order previously
obtainedex parte and it is so ordered with costs to both
counsel. Costs to be borne by the first Respondent.
BY- M.P. Mofokeng JUDGE.
For Applicant : Adv. Sulman assisted by Adv. Sapire For
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law