HIGH COURT OF LESOTHO
SECURITY COMPANY APPLICANT
SELATELA 1st RESPONDENT
BANK LTD 2nd RESPONDENT
by Honourable Acting Justice M. Mahase On the 9th March 2006
an application in which the applicant has sought an order exparte
freezing the accounts of the first respondent in the bank
second respondent, wherever situate.
interim court order was obtained by the applicant on the 7th June
2005. The effect of that interim order of court was to immediately
freeze the account No. 0121081133 held at Maseru branch of the 2nd
respondent, and all other accounts operated by the first respondent,
as identified by the second respondent, and holding all the funds
further to interdict and restrain the first respondent from
transacting on the aforesaid accounts at all. First respondent
further interdicted from withdrawing, transferring or divesting any
funds from such accounts and from closing such accounts.
Last but not
least, the second respondent was interdicted from paying out any
funds from the aforesaid accounts to the first respondent
words, the first and second respondents were interdicted and
restrained from dealing with the said accounts in general
and in all
manners in which transactions in a commercial bank can be dealt with.
Only one such account has been particularized.
That has not been done
with regard to other accounts. These others are not known to first
respondent, nor to the applicant himself.
second respondent has not filed any opposing papers. It can therefore
be safely assumed that the second respondent is prepared
to abide by
the decision of this court herein. It is a matter of common cause
that the first respondent was employed by the applicant
as a senior
supervisor of the applicant's security company. The main place of the
applicant's company is at Speedy Complex, Maseru
respondent was based in that said capacity in Butha-Buthe branch of
the applicant's offices, situate opposite BP Station,
to the founding papers of the applicant, it became clear to the
director of applicant's company that the first respondent
unlawfully receiving payments in his personal capacity from the
various customers of the applicant for security services rendered
customers of the applicant.
to the affidavit of the director of the applicant company, he
realised this fact during or about May 2005. In other words,
first respondent was not paying the money he collected from the
various customers of the applicant into the applicant's bank
applicant has listed some of those customers as being Mahloenyeng
Trading (Proprietery) Limited; Clothing Zone; Mr Sekekete
shopping complexes whose trading names have not been disclosed by the
applicant. According to papers of the applicant
all of the said
listed customers were rendered security services through the first
respondent by the applicant company but the
first respondent never
accounted to applicant for the paid sums of money.
amount of the said monies have been specified except that the
applicant has in some instances indicated that he is not sure
the exact totals which he says he is still investigating.
applicant has not been supported by any of his said customers in
anyway in this regard. All that applicant has done is to state
each of the customers revealed to him as to what has transpired
between his company and the first respondent. It is applicant's
allegation that certain of the said customers only informed him of
the deposit of the said money into account No. 0121081133201
others are alleged to have declined to reveal any such details
pertaining to the amounts paid and the mode of payment.
has repeatedly throughout his affidavit indicated that he is still
investigating some of the allegations against the first
The applicant alleges that the first respondent has also hired
security guards and paid out to them salaries without
respondent having obtained authority to do so from his employer, the
applicant herein. Applicant has, however also not been
any of such people in this regard.
respondent denies all of the said allegations labeled against him by
the applicant and that is why he opposes this application.
respondent has raised some points in limine. Same are outlined in his
heads of argument.
has no cause of action. He argues that the applicant has failed to
make out his case from his founding papers because
applicant has not
adduced admissible evidence.
first respondent's argument that the entire case of the applicant
depends upon what the deponent for the applicant was told
referred this court in particular to paragraphs 5 to 14 of the
applicant's founding papers. It is his submission that in
these paragraphs, the applicant has adduced hearsay allegations
without having made any attempt to bring these averments
exception to hearsay by saying he is informed and verily believes
what he was told and why he should so believe setting
out the grounds
It is the
first respondent's case that in deciding on these points in limine,
this court need not look anywhere outside the applicant's
papers. His story is that the applicant should stand or fall by his
own founding papers.
perusal of the said paragraphs 5 - 14 of the applicant's founding
papers makes no mention of the words that he has been
verily believes what he was told; neither has he said why he so
believes that which he has been told.
the customers' whose money the 1st Respondent has allegedly
unlawfully enriched himself with have supported the applicant
regard. Applicant has not attached any bank
slips as proof that indeed such moneys were ever received and or
deposited into the bank account allegedly held by the first
respondent with the second respondent. This therefore renders the
allegations of applicant against the first respondent in this
inadmissible hearsay evidence.
has the second respondent filed any papers to support the applicant
in this regard. Second respondent is silent even on
the issue as to
whether or not the said account No. 0121081133 is indeed an existing
account number held by the first respondent
at its bank.
trite that as general rule hearsay evidence is not permitted in
HERBSTEIN AND VAN WINSEN; THE CIVIL PRACTICE OF THE SUPERIOR COURTS
IN SOUTH AFRICA 4th EDITION PAGE 368.
learned authors state further at page 369, that it may be necessary
to file affidavits of persons other than the applicant who
to the facts. This is often done. It has already been indicated that
the applicant has among other things alleged that
he is still
investigating some of the transactions in which first respondent has
unlawfully enriched himself at the expense of
his employer, - the
question is, if indeed applicant has not finalized its
investigations, why come to court as he did thereby immaturely
the first respondent for that which applicant is not sure of?
It should be borne in mind that the interim order, which resulted
the freezing of the first respondent's accounts with the second
respondent, was obtained without notice having been given to
respondent. This applicant asked for and obtained even though he had
not established a clear right.
wonders upon which grounds the applicant based its claim against the
first respondent. It is clear in the circumstances that
had then and still has not made out a cause of action and has thus
failed to set out the essentials for an interlocutory
applicant is abusing the court process to the prejudice of the first
respondent. The applicant is clearly in a fishing expedition
he rushed to court before he has finalized his investigations against
his own employee. One wonders how the first respondent
is expected to
defend himself against these serious unfounded allegations, which
have had far-reaching adverse consequences against
applicant has itself disclosed that the sources of information upon
which it acted have refused to reveal certain information
on which it
came to court on urgent basis. How then does applicant
question that information from the said sources in order to proof its
case against the first respondent? Is this court to
assume and wish
or hope that possibly the said sources will later in the pending
trial reveal such information?
not the proper way of going about a case of such an enormous
magnitude. The amount of money involved subject-matter in
CrV/T/27^2005, a case pending against the first respondent is huge
and applicant should not have come to court seeking an interdict
relying on information which it is unsure of.
the stark contrast between paragraphs 12 and 13 of the applicant's
founding affidavit and indeed the opening words of paragraph
makes one wonder if indeed the applicant has made a case against the
first respondent calling for the application on an exparte
without notice to the first respondent.
this court agrees with the principles of the law relating to
interlocutory interdicts as spelt out by both parties herein,
their heads of argument, this court has, for the reasons shown above
come to the conclusion that the applicant has failed to
guidelines put forward for this kind of relief. This I say with the
greatest respect to the applicant.
as this relief may be, the applicant should have satisfied the
requirements or some of the requirements, which it has
articulated in its heads of argument.
court notes that applicant has specifically referred to only one
account number as being the one allegedly held by the first
respondent at the Maseru branch of the second respondent's bank. As
for the other accounts in this regard, applicant has only contended
himself with having referred to them as being .. .. and all other
accounts operated by first respondent, as may be identified by
clearly displays the conduct complained about by the first respondent
against the applicant of being engaged in a fishing expedition.
is the first respondent expected to respond to such
pleadings/allegations until such time that applicant has finished his
investigations against the first respondent? Applicant should not
have run to court seeking an order of this kind without notice
first respondent thereby denying 1st respondent of his livelihood and
generally bringing to a hold all his financial transactions
bank accounts which first respondent holds with the second
It is not
the applicant's case that all of the first respondent's bank accounts
with the second respondent have been credited/financed
alleged unlawfully obtained moneys of the applicant by first
well be that the first respondent had other ways of opening bank
accounts with second respondent without necessarily using
allegedly collected by first respondent as an employee of the
Can a man
not operate or open various accounts using one's monthly salaries?
This is a possibility which can not be overlooked.
already indicated, first respondent's points in limine are upheld.
The rule dated the 7th June 2005 is accordingly discharged
to the first respondent.
Applicant : Mr. Loubser
Respondent : Mr. Ratau
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