HIGH COURT OF LESOTHO
NATIONAL DEVELOPMENT CORPORATION Applicant
WOREE (PTY) LTD Respondent
Mr Justice W.C.M. Maqutu on the 18th April 2005
11th February 2005 applicant brought an application for the following
a Rule Nisi issue returnable on the date and time to be determined by
this Honourable Court, calling upon the respondent
to show cause (if
of the Court Order in CIV/APN/46/2005, annexure "KD6"
herein shall not be stayed pending finalization hereof;
shall not be restrained and interdicted from auctioning and/or
selling the goods the subject matter of Court Order
CIV/APN/46/2005 pending finalization hereof;
Court Order in CIV/APN/46/2005 annexure "KD6" shall not be
rescinded and/or varied;
shall not be joined in the main Application CIV/APN/46/2005 as
rules as to notice and form shall not be dispensed with on account
Applicant shall not be granted such further and/or alternative
prayers 1 (a), (b) and (e) shall operate with immediate effect as an
Interim Court Order pending the finalization hereof."
consent the interim order was granted and opposing and answering
7lh March 2005 the matter was ready for hearing - and came before me.
7lh March 2005 the matter was argued before me.
Mathaba appeared for applicant while Mr Mofoka appeared for
end of addresses I made the following order.
is granted and the rule is confirmed together with prayers (a), (b),
(c) and (d) applicants is joined as second respondent.
view of the fact that respondent came to court knowing that
applicant had an interest but did not join applicant, costs, are
awarded to applicant.
will be filed later.
(for Respondent) opposed the application based or Rule 45 (1) -of
judgment on the following grounds: -
Court had no jurisdiction to set aside the judgment substantively
respondents hypothec in respect of arrears of rent from the tenant
in terms of which a default judgment was granted are not
was not a necessary party to proceedings that were based on that
was no mistake common to both parties.
order was not based on respondent's fraud or perjury.
judgment is not obviously wrong consequently Rule 45 (1) does not
attorney had no power of attorney to bring this application.
Deputy Sheriff was a necessary party - consequently it was essential
to join him.
right to hypothec for rent enjoys priority over tax liability in the
ranking of creditors.
Mathaba for respondent argued that there was no need for a power of
attorney in respect of application proceedings. The rules
required a power of attorney in proceeding by way of action. The
Deputy Sheriff was not a necessary party as he had no proprietary
interest in respect of the subject matter of the application. His
interest was only derivative. Applicant says the order which
given was erroneously given, consequently it should be rescinded.
Annexure "TMI" shows JHI the respondent's agent
letter in respect of Woree Pty Ltd at 11.39 am not at 3.45 pm as
respondent alleges. The record of Leta Security Guards
dated 1st February 2005 backs Raletoane an employee of applicant that
he was at Respondents officer between 12:20
and 12:30 pm. While
Respondent's employee only make bare denials.
do not require that a power of attorney should be filed with the
Notice of Motion. In Mall (Cape) (Pty) Ltd v Merino Ko-operasie
1972 (2) SA 347 at page 350 Watermeyer J dealing with a similar
"Mr Aaron conceded that nowhere in the Rules of Court is there a
requirement that a power of attorney should be filed in motion
proceedings, and he conceded also that there are several decided
cases showing that there is no rule of practice requiring it."
always been the position. Where the applicant's affidavit is not
filed along with the Notice of Motion. The attorney's
bring application proceedings might be open to challenge. In the case
before me, this is not the case. Consequently
respondent has no basis
to challenge the attorney's authority to bring this application.
case I observe that an order was sought ex parte. Assuming respondent
did not know of applicant's interest - the normal
thing to do was not to appose this application. Yet applicant has
gone to great lengths to oppose this application.
It seems since the
stock in trade left in the premises is worth over M500 000.00 and
respondent is owed less than M30 000.00.
no reasonable grounds for obstructing applicant in protecting its own
interests as applicant is owed over two million
behaviour of respondent is puzzling. Herbtein & Van Winsen the
Practice of the Supreme Court of South Africa 4th
Edition at page 312
states that in all ex parte applications, the applicant must observe
the utmost good faith in
materials before court. At paragraph 14 of respondent's main
application, respondent does not deny that it had the security
over M40 000.00 in its possession. It merely notes this statement
which is backed up by the lease itself "LNDC2" of
original application. If that is so, then respondent acted in bad
faith in exercising the landlord's hypothec when it was not
have to be careful where respondent denies certain facts to decide
issues of credibility on the papers. However "In
circumstances the denial of a respondent of a fact by the applicant
may not be such as to raise a real, genuine or bona
fide dispute of
fact." Plascon - Evans Paints v Van Riebeeck Paints 1984 (3) SA
623 at page 634 I. In other words a bare denial
does not always
suffice for a dispute of fact to be deemed to exist. To put this
issue in the words of Wessels JA in Da Mata v
Otto 1972 (3) SA 858 at
page 882 H:
"The respondent's affidavits must at least disclose, that there
are material issues in which there is a bona fide dispute
capable of being properly decided only after viva voce evidence has
case applicant in answer to a bare denial of respondent's witnesses
Sefako and Ncholu proved with registers of the Security
staff and a
mail delivery employee that he was at respondent's offices and at the
was delivered. Respondent's counsel Mr Mofoka did not seriously
challenge this, thereby making the calling of viva
imperative. I was consequently satisfied that respondent knew of
applicant's interest but did not join applicant
for reasons best
known by respondent.
risky to rush to court behind the backs of people that you know will
be affected by a judgment you seek without joining them.
An ex parte
order is always vulnerable because the court wants to hear the other
side. The audi alteram partem rule is a rule of
natural justice. Mr
Mathaba pressed this point home very effectively. Clearly once the
court has found it as a fact that a necessary
party was not served -
such a judgment has been granted in the absence of a party in terms
of Rule 42 (1) ~ such a judgment or
order has to be rescinded The
reason being that it was erroneously sought and erroneously granted.
King AJ in De Sousa v Kerr 1978
(3) SA 635 at page 638 A consequently
"If the requisites of Rule 42 (1) are present, a court is
empowered to set aside judgment, notwithstanding, the fact that
good cause is not shown."
is identical to rule 45 (1) of the Lesotho High Court Rules. Further
comments of this rule were made by Nepgen J in Stander
v ABSA Bank 1997 (4) SA 873 at 882 EG to the effect that:
"It seems to me that the very reference to the 'absence of any
party affected' is an indication that what was intended was
party, who was not present when the order or judgment was granted,
and who was therefore not in a position to place before
facts which would have persuaded it not to grant such an order or
judgment, is afforded the opportunity to approach the
court in order
to have such order or judgment rescinded or varied on the basis of
facts, of which the court would initially have
been unaware, which
would justify this being done. Furthermore the rule is not restricted
to cases of an order granted, but also
to an order or judgment
erroneously sought. It would be difficult to be able to conclude that
an order or judgment was erroneously
sought if no additional facts,
indicating this is so, were not placed before court."
therefore an oversimplification to emphasize the absence of the party
alone to the exclusion of facts that could have led
to a judgment or
order not being sought or granted. In this case there might be a
basis for suspecting fraud on the part of respondent
in seeking an Ex
parte final order knowing of applicants interest.
has demonstrated that it was seeking to possess and sell the goods
that Woore Pty Ltd had left behind in order recover
arrears of taxes.
In terms of the lease which appears in the main application, there is
a three months rent deposit of M46 250.00
from which respondent
should have recovered the M29 726.32 that respondent alleged Woore
(Pty) Ltd was
the court's attention was drawn to this fact, it might have not
granted the application. In any event because applicant
interest and the property left by Woore (Pty) Ltd was worth M500
000.00, the court would have found it irregular if applicant
served with an application in terms of which respondent was
exercising its landlords hypothec.
more facts I cannot reach a definite conclusion on the issue of
fraud. Had I been able to reach it, I would have ordered
to pay costs on an attorney and client scale.
(in the circumstances) should not have opposed applicant's rescission
of judgment application to demonstrate its good
faith. Consequently I
ordered respondent to pay costs.
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