CIV/T/581/2004

IN THE HIGH COURT OF LESOTHO

In the matter between:

S. M. MOLOI Applicant

And

B.P. LESOTHO (PTY) LTD 1st Respondent

STANDARD BANK LESOTHO (PTY) LTD 2nd Respondent

Judgment

Delivered by the Hon. Mrs Justice A.M. Hlajoane on Monday 12th December, 2005

This is an Application for an interdict pendente lite brought exparte. The Applicant is asking the Court to interdict the first Respondent from operating on its call account and current account held with the second Respondent, pending finalization of the main actions in CIV/T/581/2004 and CIV/T/582/2004.

Both parties were put to terms in filing the opposing and replying papers respectively. The opposing papers were served on

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the other side on 1st November 2005 and filed on the 2nd November 2005. The Replying papers were only filed on 4th November 2005, which was the day set for arguing the matter. This was after the first Respondent had already prepared his heads of arguments.

The matter was argued on the 4th November, 2005 in the afternoon. The following points in limine were raised by the first Respondent in his answering affidavit: No Cause of Action

The first Respondent is saying that the Applicant has not made it very clear as to whether he is asking the Court to freeze the Bank accounts so that he will have something against which to execute if he ever obtains judgment against him or, whether the Applicant is alleging that once the first Respondent has closed down its business operations in Lesotho, the Court will no longer have jurisdiction to hear the actions already instituted by Applicant against Respondent. First Respondent submits that the Applicant is not in law entitled to such a relief, and that he has failed to make out a case for such in his affidavit.

But as though adding flesh to Applicant's skeleton, first Respondent turned to say that in fact the Applicant is asking the Court to freeze the accounts so that Applicant can have something

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to attach once successful in his claims, thus asking the Court to grant him security for his action.

In response to the point raised by the first Respondent, the Applicant is saying that it is not in dispute that the first Respondent is seizing operations in Lesotho at the end of this year. This has not been specifically denied by the first Respondent.

Applicant further shows that first Respondent has no tangible assets in the country, so that if Applicant becomes successful in his claims he will have no assets to attach in satisfaction of judgment in his favour. Applicant is saying first Respondent's company only exists on paper and has no assets. The Company is controlled in South Africa including its running costs. First Respondent is saying they have equipment in Lesotho without specifying what that is. The property is a filling station operating on leased property belonging to another person.

The long and short of it is that first Respondent is clear on what the Applicant's prayer is, he is adding some suppositions only to test if Applicant insists on what he is praying for. First Respondent has clearly shown under paragraph 8 of his answering affidavit what Applicant is seeking from the Court. To say there is

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no cause of action is a contradiction to what first Respondent says in his papers.

Further down in his opposing papers first Respondent is saying that Applicant has not shown any exceptional circumstances justifying the relief sought. But on looking at paragraph 9 of the founding affidavit, Applicant has stated that due to backlog of cases, he has been advised by counsel that the roll is so congested that cases are already being set or postponed to November, 2006, a fact which the Court can safely take judicial notice of.

Again in paragraph 5 of his answering papers, page 22 of the paginated record, first Respondent had tabulated Applicant's prayers justifying his having approached Court in the manner he did. He must have done so mindful or quite aware of the decisions of the Court of Appeal in Lesotho Medical, Dental and Pharmacy Council v Musoke CIV/APN/100/93 and University Teachers and Researchers Union v National University of Lesotho C of A (CIV) No. 13/98 where in the latter case the Court had this to say:

"In every case when a creditor sues a debtor for a sum of money he/she or it is in no doubt convinced to receive that money as quickly as possible. That does not mean that such a person or body has the right to move the Court as a matter of urgency. Still less so to do so ex parte

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knowing that the matter will be opposed and where the facts are in dispute.11

In motivation of his Application, the Applicant has shown that there are two trial actions between the same parties instituted in December 2004 but that pleadings in both matters are yet not closed. He attributes the blame for the delay on first Respondent and strengthens his case by stating that a default judgment which was later rescinded was even granted for failure by first Respondent to file necessary court process.

I have already shown that Applicant has stated that he has proof that first Respondent is about to close its business in Lesotho and that first Respondent has no other assets except its bank accounts, a fact which has not been denied by the first Respondent. As shown above Applicant has stated what his cause of Action is and also shown reasons for urgency which the Court finds to be justifiable. The points raised by first Respondent therefore fail.

Considering what the first Respondent reveals as funds in its accounts, if that be the true position, the Court feels that if all the accounts continue to be frozen on the basis of what Applicant alleges to be what he would be owed, if successful, Applicants' Prejudice is outweighed by that of first Respondent. The Court

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will only allow the freezing of funds to the extent of the alleged indebtness to the Applicant with costs. Parties to work together on what the amount would be and bring the figures before me to be made an order of this Court.

1. M. HLAJOANE

JUDGE

For Applicant: Mr Nathane

For Respondents: Mr J.P. Daffue (Webber & Co)

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