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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