CIV/APN/22/87

IN THE HIGH COURT OF LESOTHO
In the
matter of :

WAYNE E. BATEMAN Applicant

v

G. GOVONI IMPORTS & EXPORTS (PTY) LTD 1st
Respondent
GOVONI IMPORTS & EXPORTS LESOTHO (PTY) LTD 2nd
Respondent
STANDARD CHARTERED BANK AFRICA PLC 3rd Respondent

JUDGMENT

Delivered by the Honourable Acting Chief Justice Mr.
Justice J.L. Kheola on the 23rd day of February, 1987.

On the 28th January, 1987 the applicant made an ex
parte application in which he sought an order in the following
terms:-

1. 
   That applicant be and is hereby granted leave
   to sue
   1st respondent by edict by having the
   summons in CIV/T/36/87
   served upon the said
   respondent through an office of
   Attorney's
   practising in South Africa or through office
   of the
   Sheriff of the Transvaal Province of
   South Africa or his lawful
   deputy.

   
   

2. 
   That the Sheriff or his deputy be and is
   hereby
   directed to immediately attach the amount of
   M10,000-00
   in a suspense account with Standard
   Bank (3rd respondent herein)
   under the name of
   Govoni Importers & Exports Lesotho Pty)
   Ltd.

   
   

(1st respondent herein) as security for Applicant's
claim in CIV/T/36/87.

2

(3) That order 2 operate with immediate effect as an
interim order.

The rule was granted as prayed and the return day was
fixed as the 23rd of February, 1987. On the 4th February, 1987 the
First and
Second respondents file a notice to furnish security in
terms of Rule 48 of the High Court Rules 1980 in which the applicant
was
required within 48 hours from the time of service of the notice,
to furnish security in the sum of M2,000-00 for respondents costs
by
reason of the fact that applicant is a peregrinus of Lesotho.

On the 11th February, 1987 the Court found that the
applicant is a peregrinus of Lesotho and that he was therefore liable
to furnish
security of costs for respondents' costs of the
proceedings. However, the Court was of the opinion that the amount of
M2,000-00 was
rather excessive and fixed the security at Ml,000-00.
The security was duly furnished on the 16th February, 1987 and the
matter was
due to be heard on the same day at 2.30 p.m.

For the purposes of the ruling that I have to make on a
point of law raised in limine by Mr. Koornhof on behalf
of the second respondent, there shall be no need for me to give an
outline of the facts of the case.

The point raised in limine is that it is trite
law that a peregrinus cannot succeed in any attempt to attach the
assets of an incola as security for judgment which he hopes to
obtain in an action against a different person altogether. Mr.
Koornhof went further to say that as the second respondent is an
incola of Lesotho it is not permissible in law or otherwise
for any attachment of its assets to bo made, even if one assumes that
the sum
of M10,000-00 is an asset, which

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it is not. Mr. Koornhof referred to Rule 6 of the
High Court Rules 1980 and to the judgment of my Brother Molai in
CIV/APN/139/86 M.M. Burger v. Ocrim S.P.A. and two others.

I do not understand what the second respondent means
when it says that the attachment of the assets as security is for a
judgment
which applicant hopes to obtain in an action against a
different person altogether. The action in CIV/T/36/87 is against
G. Govoni Imports and Exports (Pty) Ltd. as the first defendant and
against Govoni
Imports and Exports Lesotho (Pty) Ltd. as the second
defendant. The second respondent in the present application is the
second defendant
in CIV/T/ 36/87. It is, therefore, not correct that
the attachment of the assets alleged to be those of the second
respondent is
intended as security for a judgment the second
respondent hopes to obtain in an action against a different person
altogether. The
summons in CIV/T/36/87 clearly shows that the second
respondent is a party to those proceedings.

The second question is whether the present application
was brought under Rule 6 like in Burgers case, supra,
in which Molai, J. was dealing with the interpretation of Rule 6. It
was held that Rule 6 gives an incola of Lesotho the right to
be granted leave for property of a peregrinus which is in
Lesotho to be attached in order to give the Court jurisdiction in an
action which the incola intends to bring against such
peregrinus. The application was dismissed on the ground that
Burger was a peregrinus and had no right in law to attach the
property of an incola of Lesotho in order to give the court
jurisdiction. The court already
had jurisdiction on the ground that
the respondent was an incola of Lesotho.

The present application has not been brought under Rule
6 and there is no reference to Rule 6 in the Notice of Motion. The
applicant

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sought the attachment of goods of the second respondent
as security

for his claim in CIV/T/36/87 because he wanted to ensure
that he did

not end up with an empty judgment should the Court give
judgment in

his favour in the main action he has lodged against the
second

respondent and another person. He alleges that the
second respondent

has no meaningful assets in Lesotho except the sum of
M10,000-00 in

the suspense account with the third respondent. If the
money were

to be withdrawn before the finalisation of CIV/T/36/87
then the

effectiveness of the judgment of this Court would be
undermined and

the applicant would end up with a useless judgment which
cannot be executed

effectively.

I must point out that attachment prior to judgment is
permissible, A creditor may in certain circumstances apply to Court
for the
attachment of his debtor's property even before he has
obtained judgment against him. This is done in order to prevent the
debtor
from disposing of his property before the creditor has
obtained judgment against him, thereby defeating the creditor's claim
(Herbstein
and Van Winsen: The Civil Practice of the Superior Courts
in South Africa, 3rd edition page 645).

The general rule is that the Court will not interfere
with the debtor's right to the free exercise of his rights of
ownership over
his property unless the creditor has shown good cause.
In the present application the applicant has alleged that the second
respondent
is about to close down its operations in this country and
has removed its office furniture and equipment from its registered
office
and is presently keeping them in the premises of another
company named Spares International (Pty) Ltd.

The second respondent has denied that it is closing down
its operations in Lesotho but has admitted that on the 27th January,
1987

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it moved its offices to Site 91, Hoohlo's, Maseru. The
new premises are far more convenient in that there is a warehouse for
the use
of the second respondent. It alleges that its operations were
totally unsatis­factory, both financially and as far as it
concerned
its customers. The services of the applicant were so
unsatisfactory that numerous complaints were received from customers
of the
second respondent. In these circumstances the applicant was
warned that should matters not improve satisfactorily, then he would
have to look for another job.

I formed the opinion that the applicant has shown good
cause and that the Court was justified in ordering attachment of the
property
alleged to be that of the second respondent. In its own
affidavit the second respondent admits that its operations were
financially
unsatisfactory. I take this to mean that it was losing
money and making no profit. Under such circumstances the likelihood
of closing
down if the situation did not improve was something that
could not be ruled out. The fact that the moveable assets of the
second
respondent are now kept in the premises of another company is
another factor that has to be taken into consideration.

In his founding affidavit the applicant describes the
second respondent as "a limited liability company registered in
Lesotho
(see paragraphs 3 and 19). It is, therefore, absurd for Mr.
Addy, counsel for applicant to criticise the finding of the Court
that the second respondent is an incola of Lesotho. He is of
the opinion that if a company registered in this country has no
meaningful assets in this country and the fact
that its majority of
shareholders live in the Republic of South Africa, then such a
company is not a bona fide incola of this country. I do not
agree with this submission. As long as the company remains registered
in this country, and has a registered
office it is an incola
of Lesotho. The fact that it has no meaningful assets in this country
is irrelevant as far as the status of the company is concerned.
In
any case Mr. Addy seems

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to contradict himself by saying the second respondent
has no meaningful assets in this country while at the same time he
alleges that
the second respondent has M10,000-00 in a suspense
account with the third

respondent.

For the reasons stated above I formed the opinion that
the point raised in limine cannot succeed and it is
accordingly dismissed.

J.L. KHEOLA

ACTING CHIEF JUSTICE.

23rd February, 1987.

For the Applicant - Mr. Addy.
For the Respondents
- Mr. Koornhof