CIV/APN/139/86 CIV/APN/136/86

IN THE HIGH COURT OF LESOTHO
In the
Application of :

MARTHA MARGRIETHA BURGER Applicant

V

OCRIM S.A.P. 1st Respondent

THE MINISTRY OF AGRICULTURE

AND MARKETING OF THE

GOVERNMENT OF LESOTHO 2nd Respondent

BINNIE & PARTNERS - LESOTHO 3rd Respondent

JUDGMENT

Delivered by the Hon Mr. Justice B.K. Molai on the
30th day of May, 1986.

First Respondent has raised points in limine in
an application wherein applicant, who carries on business as general
engineers and specialists in steel construction and fabrication
in
the Republic of South Africa under the style of Adrimar Engineering
moved the court for an urgent order framed in the following
terms:

1. A. That the Rules relating to the forms and service
be dispensed with in terms of Rule 8(22) and that this matter
be heard as one of urgency.

1. Authorising and directing the Deputy Sheriff to
attach ad confirmandum jurisdictionem all the
Respondent's right, title and interest in and to;

1.1. the amounts' owing to the First Respondent by the
Second Respondent and or such amounts standing to the credit of the
First Respondent
in the books of account of Second Respondent and or
the books of account of its consultants and agents, the Third
Respondent, being
amounts owing

/to

-2-

to First Respondent or to which First Respondent is now
or in the future will be entitled to payment of arising from the
contract
between Second Respondent and First Respondent in respect of
the MASERU MAIZE MILL AND SILO COMPLEX ("THE CONTRACT") in
an amount not exceeding R63t,565 00 plus an amount of R50,000
no as a contingency and provision for current and future legal costs
("THE
DEBT")

1 2 such other movable assets of the First

Respondent as may be found within the area of the
jurisdiction of this Honourable Court inter alia Contractor's site
equipment and
tools," motor vehicles, site buildings, unfixed
materials and engineering plant and accessories on THE CONTRACT site

2. 
   Directing that a copy of this Order be
   served on the
   First Respondent at No 76
   Via Massarotti, Cremona, Italy by
   the
   person or persons authorised to effect
   service of process
   in Italy

   
   

3. 
   Granting leave to the Applicant to institute
   action
   out of this Honourable Court
   against the First Respondent by
   Edictal
   Citation, within one (1) month of the
   service of this
   Order on First Respondent,
   for the following relief :

   
   

3 1 payment of the sum of R631 565 00 , 3 2
interest a temporibus morae ,

3 3. costs of suit ;

3 4 further or alternative relief

4. 
   Directing that service of the Edictal
   Citation be on
   the First Respondent at
   No 76 Via Massarotti, Crenona, Italy
   by
   the person or persons authorised to
   effect service of
   process in Italy

   
   

5. 
   That First Respondent be informed in the
   Edictal
   Citation that if it wishes to
   defend the action it shall give
   notice
   in writing within one (1) month of the
   date of service
   of the Edictal Citation
   to the Registrar of this Honourable
   Court
   and to the Applicant's Attorneys
   of its intention so to do.

   
   

6. 
   That costs of this Application be costs
   in the
   action

   
   

7. 
   Further or alternative relief.

   
   

/C

-3-

C 1. Directing the Respondents to forthwith

allow Applicant access to the Contract site for the
purpose of making an Inventory of its Contractor's Tools and
Equipment which it
was compelled by First and Third Respondents to
leave on the Contract site.

2 Directing that the Respondents be

interdicted from using and/or damaging such Contractor's
Tools and Equipment pending Applicant's application for the return
thereof

D Granting Applicant's application for

an
order •

1 Directing and requiring the First and
Third
Respondents, forthwith upon
completion of the Inventory
referred
to in paragraph C above, to deliver up
to Applicant at
the Contract site,

the Applicant's Contractor's Tools and Equipment as
detailed in the Inventory :

2. 
   Costs of this Application ;

   
   

3. 
   Further or alternative relief

   
   

E 1. A rule nisi be issued calling upon
Second

and Third Respondents to show cause, if any, on a date
to be determined by the above Honourable Court why the Attachment in
paragraph
B. 1.1 above should not be confirmed

2. That the Order referred to in paragraph

B. 1 1 above shall operate with immediate effect as an
interim interdict preventing Second and Third Respondents from paying
or releasing
the whole or any part of the DEBT to the First
Respondent or any other person to instance "

The application was placed before me on 28th April, 1986
when by consent of counsels for the Applicant, the First and Third
Respondents
who had attended, it was ordered that the application be
postponed to Monday 19th May, 1986 to enable the Respondents who had
intimated
their intention to oppose this application, to file their
answering affidavits The answering and replying affidavits were duly
filed
by the First Respondent and the applicant respectively

In as far as it is material, the gist of the facts
disclosed by the applicant's founding affidavit is that 1st
Respondent, a company
with limiled liabilities

/incorporated

-4-

incorporated in Italy and carrying on business as
international engineering contractors, particularly in the area of
food processing
plants has contracts in the Republic of South Africa
and the Kingdom of Lesotho, On 11th March, 1985 1st Respondent and
2nd Respondent
entered into a written agreement, Annexure "A",
whereby the former was to suppy plant and equipment for the contract
known
as the "Maseru Maize Mill and Silo Complex"
(hereinafter referred to as the contract) . On 23rd March, 1985 the
applicant
and the 1st Respondent entered into a sub-contract whereby
the former would carry out certain part of the contract. The Second
Respondent,
as Employer in terms of the contract, appointed Third
Respondend as the Engineer for the

purposes of the contract in terms of clause 1.1 (2) of
the conditions of contract In or about April/May 1985

the Applicant duly commenced work in terms of the
sub­contract and moved equipment and personnel into The

contract site. In addition, certain work was done by
Applicant at its engineering works in Potchefstroom, such as the
fabrication
and assembly of certain items of equipment which were
subsequently delivered to and

erected on the contract site The applicant proceeded
with the execution of the sub-contract work in accordance

with the agreed programme of works and in terms of the
sub-contract.

However on 17th April 1986 1st Respondent wrongfully and
unlawfully repudiated the sub-contract and gave applicant notice
thereof
by way of telex from its attorneys, Messrs Soller, Winner &
Partners to the applicant and to

the applicant's Johannesburg attorney, Mr. R.R Carlisle.
In terms of First Respondent's telex, the applicant and

/its

-5-

its workmen were instructed to remove themselves from

the contract site by 12 noon on the 17th April, 1986

which they did. Applicant's endeavours to re-enter the
contract site for purposes of taking inventory of

its equipment on site was refused on 17th and 18th April
1986.

On 21st April 1986 applicant instructed Mr R.R.

Carlisle to inform 1st Respondent's attorneys that
applicant accepted the unlawful repudiation of the sub-contract and
that it was
accordingly cancelled.

Applicant further avers that it has suffered damages as

a result of 1st Respondent's unlawful repudiation of the
sub-contract arising from the cost of materials delivered and work
performed
and loss of profits in the

sum of R631,565.00. In addition, applicant's equipment
on site is conservatively valued at R80,000.00. and wherefor
applicant intends
instituting action against the 1st Respondent for
payments of the amounts

due to the applicant as set out above, return of its
tools and equipment, and additional damages which it

may suffer arising from the above-mentioned facts,
interest and ancillary relief including costs.

I must however point out that when' on 28/4/86 the
parties appeared before me 1st Respondent intimated that there was no
objection
bo applicant removing its equipment from the contract site
and I subsequently granted an,application for the removal of that
equipment.

Applicant submitted that First Respondent has assets
within the jurisdiction of this Court being the amounts

due and owing to it by the Government of Lesotho As

1st Respondent was a peregrinus having its principal
place

of business in Italy, applicant was entitled to attach

the said amounts owing to confirm the Jurisdiction of
this Court.

/When

-6-

When on 19th May, 1986 the matter came for argument the
First Respondent raised several points in limme,

the most important of which was, in my opinion, that as
the applicant sought the attachment of property ad fundandam
lurisdictiorem the provisions of Rule 6 of the High Court Rules
1980 applied. Howrever the provisions of Rule 6(1) o± the High
Court Pules, supra,
afforded relief to an incola as against a
peregrmus-Rule 6(2) (c). Since the applicant was admittedly a
peregrinus. the relief contemplated
under the provisions of Rule 6(1)
of the High Court Rules above did not avail it Wherefor the
application ought net to succeed

It was argued on behalf of the applicant that the
purpose of the attachment in the present case was to

confirm jurisdiction which the court already had, and

not to found jurisdiction. 1 agree. Although the
reading of Rule 6(1) of the High Court Rules does not

make it very clear that the purpose of the attachment is
also to confirm the jurisdiction of the court it

should be observed, however, that the heading of this
Rule as appear on the margin reads :

"Attachment of property on arrest of person to
found or confirm jurisdiction" (my underlining).

If, therefore, Rule 6(1) is read in conjunction with the
heading that appeals on the margin thereof there can be no doubt that
the
purpose of Rule 6(1) of the Rules is not only to found but also
to confirm

jurisdiction of the court Whether the purpose of the
attachment is to found or confirm jurisdiction, Rule 6(2)

(c) of the Rules maker, it abandantly clear that the
applicant must be an incola of the Kingdom of Lesotho

and not a peregrinus I come to the conclusion
therefore that the remedy contemplated under the provisions of Rule

/6(1)

-7-

6(1) of the Rules is not available to applicant It
follows that in my opinion, the point in limine was well taken
and must be allowed That, in.my view, disposes of the matter and it
will be purely academic to consider the other
points raised in
limme.

In the light of this decision it stands to reason that
the application ought to be dismissed with costs and it is
accordingly ordered
This order applies with equal force to
CIV/APN/138/86 which is almost identical

J U D G E.
30th May, 1986.

For the Applicant Mr Winstock

For the Respondents: Mr Sapire & Mr Mr Moiloa