CIV/APN/159/86

IN THE HIGH COURT
OF LESOTHO

In the matter between

INTERNATIONAL ROAD TRANSPORT (PTY) LTD M B
NKUEBE

and

BARCLAYS BANK P. L. C

JUDGMENT

Delivered by the Hon. Acting Mr Justice D Levy on the
20th day of May, 1986

In this matter an application was brought by way of a
certificate of urgency for interim relief pending an application for
an order
on the Respondent bank to freeze the account of the
Applicant and to permit the appointment of auditors by the parties to
audit the
Applicants' banking account with the Respondent A rule
nisi was granted in the matter freezing the account of the
Applicant with the Respondent pending the determination of these
proceedings.
The matter comes before me today, but on notice only of
opposition by the Respondent and no affidavits are filed on its
behalf.
The Applicant persists in its application for the relief
that has been sought.

In my view this matter should never have been
brought by way of application unless there was some urgent protection
required by the Applicant of its assets. The Respondent
bank I may
well take notice is an international bank with resources far beyond
the amount claimed by Applicant and there is no possibility
that any
prejudice

may
be suffered by him pending the eventual outcome of any

/further

-2-

further relief that he may seek The Applicant bases his
application upon allegations of thefts and falsification of his
banking account
by employees of the Respondent all of which he says
leads him to believe that monies have been falsily debited to his
account and
that credits have not been properly accounted for. That
may well be so, I am in no position to make any finding in that
regard.
But what is palpably clear to me is that there cannot have
been any doubt at all in the Applicant's mind, if he had given the
matter
any thought, that none of the allegations made by the
Applicant would ever be admitted by the Respondent He should have
known that
allegations of theft against the Respondent were bound to
be denied and whether or not there is any proper explanation of the
various
items about which he complains, is a matter which can only be
determined on the hearing of evidence.

In that light, the Applicant should not have brought an
application nor should he have sought any kind of interim relief
which he
did not really require since the resources of the bank more
than adequately protect him against any falsification of his account
for the few thousand rand about which he complains.

If the Applicant has any remedy at all, it certainly is
not for the appointment by auditors, that is a matter beyond the
jurisdiction
of this Court. His remedy is to sue by way of rou
actie for a statement of account and for debatetient of that
account in the Court if he is not satisfied with the statements so
far furnished
or that may be furnished in the future by the
Respondent.

In such a trial, the evidence of auditors would be heard
and the bank account of the Applicant with the

/Respondent....

-3-

Respondent would be examined by the Court and by such
expert witnesses that they might decide to employ. That would have
the proper
way to approach this problem and not by way of an
application without notice for interim relief which was totally
unnecessary

Whatever may be the outcome of the trial, this
application should never have been brought and I am satisfied on the
principles that
are well established in this Court that the
application should be dismissed with costs and it is so ordered.

ACTING JUDGE 20th May, 1986

For the Applicants Mr. Kambule For the Respondent Mr
Harley