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 RespondentGOVONI IMPORTS & EXPORTS LESOTHO (PTY) LTD 2nd RespondentSTANDARD 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:-
That applicant be and is hereby granted leaveto sue 1st respondent by edict by having thesummons in CIV/T/36/87 served upon the saidrespondent through an office of Attorney'spractising in South Africa or through officeof the Sheriff of the Transvaal Province ofSouth Africa or his lawful deputy.
That the Sheriff or his deputy be and is herebydirected to immediately attach the amount ofM10,000-00 in a suspense account with StandardBank (3rd respondent herein) under the name ofGovoni Importers & Exports Lesotho Pty) Ltd.
(1st respondent herein) as security for Applicant's claim in CIV/T/36/87.
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(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