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

2

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

4

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

5