judgment in this civil application brought before the Court of
Appeal, was prepared by my colleague van den Heever.
applicant ["the LHDA"] was successful in its suit based on
wrongful conduct by the respondent ["Sole"],
awarded damages. Sole's appeal against that judgment and order is
ripe for hearing. In the course of the lengthy trial
persisted in denying that he had money in Switzerland or in
possession of Swiss bank account records. After the trial
had come to
an end the LHDA itself came into possession of copies of Swiss bank
records purporting to relate to accounts held by
Sole. He did not and
will not admit them or that their contents are correct.
LHDA's application to this Court in so far as it seeks a punitive
order that Sole's defence to three of the eleven claims against
be struck out, is misconceived. Assuming this Court has the power to
do so, making such an order would be inappropriate at
this stage and
leave the issues whether the court a quo had correctly found
causation and quantum of damages proven, unresolved.
Nor can the
relief sought, that Sole be ordered to discover the records now, be
granted where they were not in his possession. Nor
can the order
prayed in the further alternative be granted, namely that the LHD A
itself be permitted to add the Swiss bank records
to the appeal
record by one or other of a number of alternative procedures. The
founding affidavit does not indicate that they
would be admissible
per se_ or that the LHDA has. or can obtain,witnesses through whom
the Swiss documents could be put before
a court here. Nor has any
basis been laid for counsel's application that the matter be removed
from the roll to enable him to as
it were have a second bite at the
application is dismissed with costs.
C OF A
HIGH COURT OF LESOTHO
EPHRAEM SOLE APPELLANT
in this Application)
HIGHLANDS DEVELOPMENT AUTHORITY RESPONDENT
in this application)
J.H. Steyn P
L. van den Heever JA
M.E. Kumleben JA
den Heever JA
sake of convenience I refer to the applicant in the application
before us, the Lesotho Highlands Development Authority,
LHDA" and the respondent by his surname: Sole.
is a body corporate constituted in terms of Section 4 of the LHDA
Order of 1986. Sole was employed as its Chief Executive
contemplated by Section 7 of that Order. The LHDA issued summons
against him in November 1995, after their relationship had
come to an
end, setting out eleven varied claims for damages allegedly suffered
by the LHDA as the result of wrongful conduct by
Sole. Mr Penzhorn
for LHDA accepted that only three of these are relevant to the
present application, namely those numbered 2,6
and 7 in the
particulars of claim
lengthy trial dealing with events which had occurred over a period of
almost a decade, the LHDA was awarded damages totalling
M7 776 311.98
payable by Sole, with costs on a special scale which it is
unnecessary to detail here.
appeal (Civil Appeal No.26/99) is ripe for hearing by this Court. The
LHDA, the respondent on appeal, however, on notice
of motion seeks an
order in the following terms:
"1. The Appellant's appeal under the abovementioned case number
is hereby stayed pending the determination of this application.
Appellant's defence to claims 2,6 and 7 in the Court a quo is hereby
struck out, alternatively this matter is referred back
to the Court
a quo for this issue to be dealt with.
the alternative to paragraph 2 above, the Respondent is hereby
granted leave to reopen its case for the following to be dealt
by this Honourable Court, alternatively the Court a quo.
3.1 The Appellant is ordered to place before the Court within 7 days
of the date of this order the full records of accounts held
by him in
Switzerland, either now or in the past, alternatively the Respondent
is hereby given leave to prove such bank records.
3.2 The Respondent is authorised to lead such further evidence
relating to such records as it considers relevant and relating to
3.3 The Appellant is directed to answer such further questions as may
be put to him by the parties or by the Court relating to
3.4 The Respondent is authorised to pursue such further remedies as
may be available to it."
Marumo, the current Chief Executive of LHDA in his founding affidavit
LHDA proved its case and the appeal should be dismissed on the
evidence in the appeal record without amplification
nevertheless sought to amplify his case by the introduction of
further evidence on appeal. He urged that Sole was in contempt
trial court as regards discovery and deliberately obstructed the LHDA
from leading further relevant evidence pertaining
to claims 2,6 and
should not be permitted to proceed with his appeal until he has
purged his contempt by producing the documents the LHDA had
requires that the LHDA be allowed "to introduce these bank
records into evidence and to lead such evidence relating
may be relevant, albeit on appeal."
founding affidavit with its annexures details the many attempts of
the LHDA to compel Sole to discover documents relating to
bank accounts, including any foreign ones. He consistently denied
having one in Switzerland. The LHDA itself produced evidence
indicating that his denial was false, and itself succeeded in
obtaining records of accounts in Sole's name in Switzerland. These
documents, about seven lever arch files of them, were received in
Lesotho during June of 1999 after the trial had come to an end.
LHDA's attorney wrote to Sole's:
"Please confirm that Mr Sole now admits these records and that
you will include them in the Court of Appeal record, coupled
admission that the entries therein are evidence of the facts
suggested therein. This will obviously, in turn, mean that
evidence will have to be led, either before the Court
of Appeal or the Court a quo.
Unless such an undertaking and admission is forthcoming, we will be
compelled to apply to the Court of Appeal of lead this further
evidence either before the Court of Appeal or before the Court a
Sole's attorneys made it clear that:
"our client does not admit the alleged bank records that have
been served on him and will most certainly not be included in
Court of Appeal Record for obvious reasons. Any action which you wish
to take against our client will be opposed before whatever
bring the intended proceedings."
regards the punitive measure of striking out Sole's defences to the
three claims, the application by LHDA is misconceived.
34 (1) to (13) of the Rules of Court deal with pre-hearing steps.
Subrule (14) provides for an order during the course
of the trial,
for the production by any party thereto of "such documents in
his power or control relating to any matter in
question in such
action .... as the court may think just, and the court may deal with
such documents, when produced, as it thinks
fit." No mention is
made of striking out a defence at this stage. Nor were we referred to
any provision authorising an appellate
tribunal to go even further.
Had the trial court struck out Sole's plea before the commencement of
the trial, that would not have
entitled the LHDA to a favourable
judgment in its favour without more. It was obliged to tender
evidence to discharge
multi-facetted onus which burdened it of establishing not only loss
and wrongfulness vis-a-vis the LHDA on the part of Sole,
causation and quantum of damages. Mr Penzhorn in effect asks this
court not only to strike out Sole's plea, but also all
tendered on his behalf at the trial, and to accept that the LHDA had
discharged the onus on these claims. The documentation
alleges that Sole in effect hid from the court a quo, may or may not
have a bearing on relevant wrongfulness of his conduct,
irrelevant to the other issues on which the onus burdened the LHDA.
Assuming that a Court of Appeal may impose a greater
sanction than a
trial court was able to do, nothing on the papers before us persuades
me that it could be appropriate when, acceding
to the request to
strike out his defence could result in Sole being "fined"
millions of maloti.
regards the procedural prayer, namely, reopening the case for further
evidence, that too cannot succeed. Assuming any of the
obtained from Switzerland are relevant to the claims in question,
they were not in the possession of Sole. However unco-operative
may have been, or worse, he was and is not obliged to discover them.
No order compelling him to do so would be competent.
and once again on the assumption that they are relevant in respect of
the claims in question, the founding affidavit fails
to indicate on
what basis they could be admitted in evidence. They are not public
documents and it is manifest that Sole will not
agree to their
admission. There is no indication that the witnesses required to
prove them, would be available or willing to ensure
admission,still less to be cross examined. This lacuna is fatal to
the relief sought. The application by the winner in the
court a quo
to bolster his case with further evidence on appeal is in
unusual. Moreover, not a single one of the tests laid down in Colman
vs Dunbar. 1933 AD 141 has been met to warrant any such
particularly that requiring the proposed new evidence to be
confronted with these problems, Mr Penzhorn applied for the matter to
be removed from the roll. The purpose of this application
enable him to supplement the application by way of further evidence,
and in so doing, to overcome the obstacles to his obtaining
for such an application has been laid. No reason has been advanced
for the failure of the applicant to establish the requisites
successful application. Neither has the applicant proposed how he
intends to bring his case within the ambit of these requirements.
reasons the application is dismissed with costs.
OF THE COURT OF APPEAL
in open Court this 13th Day of October, 2000.
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