CIV/APN/255/99

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

'MAMPE
KHAEBANA APPLICANT

AND

IFTS
(PTY) LTD LIQUIDATION 1st RESPONDENT

LESOTHO
BANK 2nd RESPONDENT

NALEDI
CHAMBERS 3rd RESPONDENT

MASTER OF
THE HIGH COURT 4th RESPONDENT

JUDGMENT

Delivered
by the Honourable Justice T. Nomngcongo on the 9th day of August 2005

The
Applicant has moved court on an urgent basis for prayer in the
following terms.

1. Dispensing
   of Rules of Court as to form and service on account urgency of the
   matter.

   
   

2. A
   Rule Nisi be issued calling upon Respondents to show cause why:
   

   
   

5. Second
   Respondent shall not be ordered to fulfill its undertaking to pay
   Applicant's benefits or cause the benefits to be paid
   (terminal)
   (sic)

   
   

5. Pending
   finalization of this application Respondents shall not be
   restrained from removing from applicant's custody and possession
   a
   certain motor vehicle registration number AF 837.

   
   

5. Respondents
   shall not pay costs in the event of opposing this application.

   
   

5. Applicant
   shall not be granted further and/or alternative relief.

   
   

3. That
   prayers 1 and 2(b) operate and (sic) Interim court Order with
   immediate effect.

   
   

It is
common cause that the Applicant was an employee of the lst
Respondent, a company under liquidation. It was a company fully
owned
by the 2nd Respondent

which has
also since been liquidated.

During
her employment with the 1st Respondent, the Applicant was entitled to
certain

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benefits
which included a company car. The company had its ups and downs and
nationally employees became apprehensive about their
status and
apparently sought some sort of protection in the event of any change
in the situation of the company.

This
resulted, inter alia, in the correspondence marked annexure "LB1"
to the founding affidavit between the Applicant
and one P.J.Mc Enery
apparently representing Lesotho Bank, the second Respondent herein.

In the
letter he concludes that "Should the decision be to cease the
operations of the company you will be entitled to terminal
benefits
which will be paid as soon as possible."

Read in
its context it is clear that P.J. Mc Enery was writing on behalf of
"IFTS" which is presumably the 1st Respondent.
He says in
this regard that he had attempted to call the Board of IFTS but had
not succeeded. He would then call its shareholders
meeting comprising
of the chairman of the Lesotho Bank Board Mr. Jenkins and himself. It
is my view therefore that if there ever
was a promise in the said
letter to pay any terminal benefits, it was made by Mc Enery on
behalf of and representing the Board
of the shareholders of IFTS and
not Lesotho Bank. There is no question, reading from that letter,
that Mc Enery was committing
Lesotho Bank to anything.

3

The first
Respondent is in liquidation. Although it had shares, albeit, one
hundred percent, it was a separate entity from IFTS
and the board of
IFTS could not decide anything for it. Lesotho Bank therefore had
nothing to do with Applicant.

The
Applicant could only bring proceedings against it by leave of the
court. Section 180 (a) of the Companies Act N0.25 of 1967
reads as
follows in this regard.

"180. In a winding up by the court -

1. no
   action or proceeding shall be proceeded with or commenced against a
   company except by leave of the court and subject to such
   terms as
   the court may impose"

   
   

The
Applicant in casu has not sought such leave. She is therefore
non-suited.

The
Applicant then cited Naledi Chambers as third Respondent herein. It
turned out that Naledi Chambers was not the liquidator of
the lsl
Respondent. She sought to rectify this by substituting the proper
liquidator, Mrs Chimombe. That she could not do so either.
She had
brought this application on an ex parte basis claiming urgency. She
had thus taken upon herself the risk of non-disclosure.
This
mis-joinder on her part amounted to material non-disclosure (see
Herbstein & Van Winsen - THE

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CIVIL
PRACTICE OF THE SUPREME COURT OF SOUTH AFRICA 4^th Edition
p. 367), In any case as indicated above the 1st Respondent had not
been properly brought to court. In the meantime the
liquidator must
carry on his job of liquidating the assets of the company on behalf
of all its creditors and members. These include
the company car in
the hands of the Applicant.

This
application was mis-conceived from the beginning. It is dismissed
with costs together with its ancillary application.

T.
NOMNGCONGO

JUDGE
August, 2005

For
Applicant: Mrs Kotelo

For
Respondents: Mr Mpobole

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