IN THE HIGH COURT OF LESOTHO In the
DONG PINGHUA 1st Applicant
JIN HUA 2nd Applicant
vsZHANG ZHAO TAI Respondent
Delivered by the Hon. Mr Justice M.L. Lehohla on the
21st day of June. 1999
On 27-05-99 which was an extended return day when
arguments were heard and Judgment reserved till 21-06-99 I had hoped
that by then
I would have received transcripts of those arguments and
submissions as the instant application is a product of two previous
applications among the same litigants. Unfortunately the
transcripts are not on hand still. Since the matter is indeed urgent
there is no saying when the transcripts would be completed the
2 has advised itself to give its verdict and reasons
thereon on this day which was
appointed for that purpose in the first place.
To give background to the instant application which was
moved ex parte by Mr Nthethe on behalf of the applicants and argued
Mohau on the return day against the respondent represented by
Miss Qhobela it is important to indicate that the first application
to start the ball rolling was CIV/APN/149/99 moved ex parte by Miss
Qhobela on behalf of the instant respondent against the instant
applicants. This was on 15-04-99. The interim order was returnable on
On the return date the rule was confirmed by default.
On 20-05-99 Miss Qhobela again approached Court ex parte
on behalf of the instant respondent against the two respondents (as
cited) plus the Court messenger who was the third respondent.
Having heard Miss Qhobela's earnest pleas the Court was
constrained to grant a Rule Nisi based on the following short
reflecting the court messenger's lack of comprehension
of what he was required to do in terms of the Interim Order
by the instant respondent who was the
3 applicant in CIV/APN/149/99. The matter was at that
stage simply getting out of
control and the messenger was apparently not equal to it
as it was getting complicated and what seemed to be the brief
of police in it and their immediate inactivity further
compounded the complexity of the matter.
The brief judgment granted on 20-05-99 was as follows :
"It seems to the Court after the address by Miss
Qhobela and perusal of the papers that the present respondents (in
gained more benefit through the messenger of Courts
misunderstanding of the Court Order than was asked for in their
papers and granted
in that Order.
In the circumstances the respondents are to be placed in
the position they had craved in the interim period falling between
of the interim order and that prior to the granting of
the final order.
In short the prayer in the instant application for
reinstatement of the Rule Nisi in CIV/APN/149/99 is granted ex parte
and is returnable
Reference to the respondents who had gained more benefit
than they had craved is reference to the instant applicants in
who had obtained an interim order on 11-05-99 for stay
of execution of Judgment obtained by default in CIV/APN/149/99 on
4 In the instant application 189/99 the two
applicants sought a Rule Nisi
upon the Respondent to show cause why :-
the default judgment granted by this Court
inCIV/APN/149/99 shall not be stayed, pending theoutcome of
application for rescission.
the default judgment shall not be
(d) the applicants shall not be granted leave to file
theiropposition to the said main application.
It was further prayed that prayer 1(a) and (b) should
operate as interim interdict with immediate effect.
In his founding affidavit the 1st applicant
avers that both he and the 2nd applicant are adult Chinese
businessmen carrying on business of BACO SHOP Butha Buthe. The
respondent who is an adult Chineseman is
presently occupying the
business in question. The above averments are common cause.
The 1st applicant further states that the
respondents son called Zhang Yan Wu now deceased and this deponent
became co-directors with the
1st applicant in Song
Tsang(Pty)Ltd. The 1st applicant has attached "DPO1"
substantiating his own position as Director of Song Tsang(Pty)Ltd.
The respondent denies
that his late son became co-directors with the
1st applicant in Song Tsang (Pty)Ltd. He
5 avers that his son was the director of what is termed
SOU Tsang (Pty)Ltd with
certain individuals as set out in the memorandum of the
company attached to his answering papers and marked "ZYW1".
it seems to me that the difference between SONG and SOU is well
accounted for in 1st applicants replying affidavit at
paragraph 3. As for his assertion that "ZYW1" is not
annexed he can only enjoy my sympathy
for even I took a long time
trying to look for it only to find that the "1" at the end
of the marking is written very much
like "2" at page 5 of
the record. See Articles of Association
Another matter of some puzzlement is how CIV/APN/184/99
which seeks to object to things done in CIV/APN/189/99 bears a prior
instead of a subsequent one to that of the proceeding being
sought to be challenged. I shall however let this curious state of
rest for it doesn't at all affect the sequence of events.
The 1st applicant and the wife of the late
ZHANG YAN WU are brother and sister. The sister and her husband Zhang
Yan Wu died simultaneously
in a road accident; leaving a minor
daughter in whose interests the respondent moved the applications in
CIV/APN/149/99 and CIV/APN/184/99.
6 The 1st applicants averments seem to be
opposed at every turn by the
respondent such that even the replying affidavit
confines itself to reiterating averments in the founding affidavit.
However the 1st applicant avers that the SONG
Tsang or SOU Tsang company traded in retail and wholesale business
acquiring a small shop at Butha
Buthe under the name BACO Fashion
Shop. Later as it expanded it traded under the name and style Sharp
Wholesales which later changed
into BACO SHARP SHOP.
In reaction to this averment the respondent raises his
denial and puts the deponent applicant to proof thereof. In response
the 1st applicant reiterates his statement in the founding
The 1st applicant states in paragraph 8 of
his founding affidavit that the late ZHANG terminated his
directorship and took all the moneys
away with him constituting his
shares in the company and set up his own business in Bethlehem but
died together with his wife in
China before this could actually take
The respondent hotly disputes these averments except in
so far as they relate
deaths of ZHANG and his wife.
The 1st applicant avers further that after
the simultaneous deaths of the two, it was decided to sell the Small
Shop at Butha Buthe inside
which the stock valued at M27 000-00 was
to be given to the deceased's minor child. A copy of the agreement
is attached. The upshot of the respondents
reaction to this averment is first neutral and he says he has no
knowledge of it but later
he makes a rambling attack based on
speculation and grave doubts as to the deponents truthfulness and
In his attempt to show that both applicants could not
have been served with the interim order in CIV/APN/149/99 nor been in
default when judgment was taken against them finally, the 1st
applicant seeks to indicate that he and 2nd applicant were
arrested on 15th April, 1999 by Immigration Officers and
taken to the Republic of South Africa only to come back on 25th
April, 1999 and not before having been deported to China after being
kept in a South African prison.
The deponent states that he and 2nd applicant
came to learn only on 7th May, 1999, of the final order
having been granted against them. The respondent looks to all this
with skepticism and states that it
is calculated to mislead the court
8 as he avers the applicants were still in the
country at the time in question. He
maintains they are playing up to the Court for mercy in
order to wriggle out of the awkward position in which they placed
The 1st applicant finally avers that he and
2nd applicant have a bona fide defence and that the shop
in question is the property of a company called Dong Si
which the applicants are directors. He avers
further that the respondent has no locus standi in the affairs of the
shop. He attached
"D003" in substantiation of his averments
in this regard styled Certificate of Incorporation.
Miss Qhobela in argument attacked this document as
lacking in genuineness because it does not bear the Seal of the
Registrar of Companies.
I hold with Mr Mohau that indeed failure by
the Registrar of Companies or his or her staff to do their job
properly cannot be saddled
on the applicants.
Miss Qhobela relying on Rule 4(1)(b) of High Court Rules
1980 submittedthat service allegedly effected by the Deputy
Sheriff was proper service inasmuchas the Rule in question
provides that service of any process of thecourt "shall be
effected by the sheriff in one or other of the following
by delivering a copy personally to the person to be
by leaving a copy of such process at the place of
business or residenceof the person to be served ".
There cannot be any quarrel with the Rules and what is
provided in them. A rather disturbing feature in what is the case in
matter would be if the Court should blindly go along with
the respondents bare assertion that the applicants were inside the
in the face of their evidence that they had been bundled out
of the country in circumstances that could not have made them the
Chinesemen the deputy sheriff says he served there in the
shop on the day when the applicants say they were absent from the
and only came to know of what happened much much later when the
respondent had taken possession of the shop and was denying them
entry thereinto. Thus in the absence of concrete proof that they were
present in the country and therefore had access to the shop
be dangerous to come to a conclusion that they were not only served
as provided in terms of Rule 4(1)(b) above but must
have been in fact
served personally in terms of Rule 4(1)(a).
The applicants contend that the respondent had no locua
standi to have instituted proceedings in CIV/APN/149/99. Indeed this
tends to have
10 substance in the light of the fact that the keys of
the shop in question belonged to a company in which the 1St
applicant says he was a director. Granting for the sake of argument
that this shop was subsequently sold to another company of which
applicants are directors it would seem that if the respondent, as
definitely happens to be the case, is neither a director nor
shareholder in the original company he would have no right to bring
the application in CIV/APN/149/99; more especially that it
cause that there was no sole proprietorship in the original company.
Assuming that it is correct that the applicants were
outside the country during the time of the alleged service and at the
the matter went by default it requires no stretch of one's
imagination to conclude that they would not have been able to defend
matter on the return day.
In view of the fact that what is required of the
applicants is not whether their story is correct but merely that if
proved it would
defeat the respondent I am inclined to conclude that
the applicants have shown good cause on a balance why they couldn't
the matter in CIV/APN/149/99 when they were outside the
country at the time. See Van Rensburg & Vennote vs Den Dulk
112 where it was held as follows :
"When, after a plaintiff has applied for default
Judgment, the defendant applies for removal of bar and the plaintiff
it on the ground that the defence disclosed is insupportable
in law, the Court will not regard the defendants allegation that he
bona fide believes that he has a good defence, as sufficient. If the
defence is in fact unacceptable in law, then removal of bar
refused and default judgment granted".
In the instant proceeding I don't think it could be
argued that the defence raised in respect of CIV/APN/149/99 is
Given that the respondent is neither a director nor a
shareholder in the company involved in CIV/APN/149/99, and that he
on behalf of his orphaned grand-child when he brought
proceedings in that application, and given further that the
grandchild is neither
a director nor a shareholder in that company it
becomes questionable that people with standing in that company i.e.
shareholders did not bring proceedings in that
application if indeed there is substance in reasons that prompted
that such application
Mr Mohau's argument is compelling that companies have a
standing of their own and proper ways of dealing with their affairs.
way is illustrated by the fact that if a company commits a
wrong the proper person to sue is the company itself; not an
shareholder. Thus it would seem a sound
12 proposition that if the original sale of the shop
amounted to a wrong against that
company it is that company that ought to have brought
proceedings and not the present respondent. The basis for this being
company can sue and be sued in its own name as a distinct
The applicants contend that proceeds of sale of the
original company were, by agreement with the respondents late son, to
be for the
benefit of the respondents orphaned grand-daughter.
I need repeat that the respondent has filed
CIV/APN/184/99 wherein he seeks, among other things, reinstatement of
the Rule in CIV/APN/149/99.
The respondents in both those
applications (who are applicants in the instant matter) contend that
the Rule in CIV/APN/149/99 having
been confirmed and then
subsequently stayed in terms of an Order in CIV/APN/189/99 cannot
properly be reinstated. The proper procedure
being that the applicant
in CIV/APN/184/99 proceeding was obliged to anticipate the Rule
relating to the return date in CIV/APN/189/99.
As stated earlier the Court was much constrained to
grant the order that was sought without adopting the proper procedure
anticipation of the return
13 date as provided in the Rules in the event that
the respondent feels prejudiced by
the length of the interval between the granting of the
interim order and the return date.
Rule 8( 18) unambiguously provides that:
"Any person against whom an order is granted ex
parte mayanticipate the return day "
On the back of the above Rule is the authority of
Lesotho Football Association vs Lesotho Sports Council 1991-92 LLB-LB
26 which is
pertinent to the instant proceeding. In that case BROWDE
J.A. was confronted with the following situation
"On 26th July 1991, appellant obtained
an interdict against respondent on an ex parte urgent basis.
The rule nisi was made returnable on 2nd
August, 1991. Afterappellant had obtained its rule, respondent
also obtained a rule exparte, which had the effect of suspending
the operation of the orderobtained by appellant "
The learned Judge unanimously with the other Members of
the Appeal Court
"(a) that once a rule nisi has been granted, it can
either be abandoned by the party in whose favour it was granted, or
14 or discharged by the Court on the return day;
further that, once it had granted the rule nisi, the
court a quo wasfunctus officio and could only deal with the rule
on the return day.
further that, the only way the court could have varied
or rescindedthe rule at the instance of the respondent under
rule 45, should havebeen after appellant had been given due
Confronted with this authoritative statement of the law
Miss Qhobela conceded, very properly in my view, that it would be
for this Court to be persuaded to such extent as to
subvert its tenor and spirit.
Needless to say I am not persuaded that the application
for rescission in the instant proceeding is intended merely for
claim in CIV/APN/149/99.
See Mthembu vs Igbala 1980(2) LLR 510 at 515.
Even if any of the respondents objections could be
entertained it is inconceivable that they could prevail against
Browde J.A's dictum
in LEFA above.
Consequently it is ordered that the rule in
CIV/APN/189/99 be confirmed with costs in terms of prayer 1(b), (c)
and (d); while that
in CIV/APN/184/99 is
For Applicants : Miss Qhobela For Respondent: Mr
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