CIV/APN/395/06
IN THE HIGH COURT OF LESOTHO
In the Matter Between:
TEFETSO SELEBALO APPLICANT
AND
NEDBANK (LESOTHO) LTD RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 26th September, 2007
Applicant herein approached the Court on Notice of Motion for an order as follows:-
That a Rule Nisi be issued calling upon Respondent/Plaintiff to show cause, if any, on the date and time to be determined by this
Honourable Court, why:-
the Rules of court regarding form and service shall not be dispensed with on account of urgency thereof.
Execution of the Writ dated on 12th September 2006 shall not be stayed pendente lite finalization of negotiations that have been entered into between the parties herein.
Judgment in CIV/T/107/06 shall not be rescinded.
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That prayers 1(a) and (c) operate with immediate effect as an interim relief.
The application is opposed with respondents raising two points in limine to wit, lack of urgency and non-compliance with the Rules of Court, as well as non-disclosure of material facts.
I find it apposite to mention at this stage that on the date of the application, the 7th May 2007, Mr. Fuma who was representing
applicant applied for a postponement for the reason that he had not yet met his client to get further instructions.
Naturally, the application for postponement was vigorously opposed by Mr. Daffue who argued that it was two (2) months since the new Counsel for applicant were appointed. Further that applicant through his attorneys had already sought and been granted a postponement in April. He added that applicant had been granted the interim order without notice to the respondent in September 2006 and had since been changing counsel as a delaying tactic.
Mr. Daffue argued further that even the period for filing a replying affidavit had long lapsed so that a postponement would not serve any meaningful purpose had to in that applicant was barred from filing any further affidavits which means that his legal representative had to make do with the papers that had already been filed of record.
Having heard both sides I came to the conclusion that there was no valid reason for granting applicant the postponement sought especially in light of
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the history of the matter as was relayed to the Court. I therefore dismissed the application and proceeded to hear the matter. I should also mention that at the time of the application, applicant had indeed not filed any reply.
With regard to the first point it was respondents' case as was submitted by Mr. Daffue that the interim relief was obtained notwithstanding
the fact that the notice of motion was neither served on respondent nor on its attorneys and that no proper reasons were advanced for non-compliance with the Rules of Court.
Further, that no detail was advanced by applicant/defendant why he moved the application urgently nor had he advanced any reasons for any claim that he could not be afforded substantial relief in a hearing in due course if the periods provided for by the rules were followed. In addition, that the granting of an order without notice is a serious breach of the audi alteram patent principle.
Respondent also averred that at the time applicant brought his application, he had only been served with the writ of execution and that no auction date had been arranged yet so that his moving the matter on the basis of urgency was not justified.
On non-disclosure of material facts, it was respondent/plaintiffs case that as evidenced by the affidavit of Mr. D. G. Roberts, the defendant concealed from the Court the fact that he and a certain Mr. Karim had visited Mr. Roberts on 20 September requesting him not to proceed with execution of
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the order until 26th November 2006 to enable applicant to arrange his finances and come up with an acceptable proposal for settling his debt.
Mr. Daffue pointed out that when the application was moved on the 25th September 2006 defendant chose not to inform the Court about this arrangement which would show the Court that the matter was not urgent at all. He accordingly prayed that the rule nisi should be discharged with costs on a punitive scale.
In his response, Mr. Fuma submitted that as it was averred by applicant in his founding affidavit, a writ of execution is normally issued in accordance with judgment after which attachment and sale will follow to satisfy a debt. He added that despite there having been no advertisement for the sale in execution at that stage, applicant's fear was reasonable and the matter was urgent so that he had no option but to approach this Court in the manner that he did.
On the issue of non-disclosure, counsel for applicant argued that the facts as mentioned by Mr. Daffue regarding talks between the litigants and/or their representatives would not have influenced the Court in any manner as the said facts were not material.
I immediately proceed to deal with the two points.
Urgency is dealt with in the provisions of High Court Rule 8(22) (b) which provides as follows :-
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In any petition or affidavit filed in support of an urgent application, the applicant shall set forth in detail circumstances which he avers render the application urgent and also the reasons why he claims that he could not be afforded substantial relief in an hearing in due course if the periods presented by this Rule were followed. " (my underlining)
In casu, although the matter was purportedly moved on notice of motion, no such notice was served on the respondents thus effectively denying them the opportunity to file their notice of intention to oppose. In the accompanying certificate of urgency, Mr. Adolph Boi Thabane stated as follows in parts:-
"Applicant has already been served with a writ and the fear is that, if the proper rules of Court are not dispensed with, the judgment would have been executed at the end of process.
Applicant would be severely prejudiced if execution would be effected in spite of amicable negotiations going on. "
The founding affidavits in turn contain averments a brief summary of which is that the present applicant acknowledged being indebted to respondent/plaintiff and that they were in the middle of negotiating a settlement out of court. Further, that it was never his intention to dispute existence of the loan. Applicant continues as follows at paragraph 7:-
"To my shock and utter dismay the next thing I received a writ of execution to satisfy a judgment debt. I was really shocked for, when the writ was served on me I was in fact expecting the results of the negotiations towards settlement."
The issue of urgency has been extensively dealt with by both the Court of Appeal and the High Court time and again. Authorities therefore abound with regard to under what circumstances should a litigant approach the Court on an urgent basis and without giving adequate notice to the other side.
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In casu, although applicant through his attorneys approached the Court on an urgent basis and purportedly on notice, he failed to meet the requirements of Rule 8 as quoted above. This is in the sense that not only has he failed to set out in detail circumstances which he avers render the application urgent, but he has also failed to state the reasons which he claim that he could not be afforded substantial relief in a hearing in due course if the prescribed periods were followed.
In its numerous decisions including inter alia those of 'Mapuseletso Mahlakeng and 55 Others v Southern sky (Pty) Ltd and 7 Others C of A (CIV) No. 16 of 2003 and the Commander LDF & Ano. v Matela 1999-
2000 LLR/LB 13 the Court of Appeal has emphatically stated that orders sought without notice to the other party 'should only be granted without notice where this is rigorously justified (where, for instance, there is extreme urgency or the need to prevent the order from being frustrated where any prior notice could well have that effect)' Per Steyn P in Matela's Case (supra) at pl6.
The above case further lays down the requirement that it is not enough for counsel to certify urgency but to shortly state the grounds for same in his certificate of urgency.
Coming back to the present case, not only has these requirements not been met, but perusal of the record reveals that parties were in the middle of negotiations, which in my opinion is proof that there was no urgency in the matter whether real or imagined, that would justify the manner in which
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applicant approached this Court for relief. Accordingly, it is my view that the point that was raised by respondent on this issue was one well taken.
On non-disclosure, respondent's averments as deposed to Mr. Roberts were that part of the negotiations agreement was that though he was in possession of a writ of execution against him, applicant would hand over certain documents regarding property he hoped to sell to wit, a Mercedez Benz motor vehicle and some immovable property towards satisfying the claim. Further, that it was only upon receipt of the said documents that he would get cooperation pertaining to the intended settlement.
Mr. Daffue submitted that this was a material fact on the basis of which this Court would not have granted applicant the order if it had known about it. He added that even this information would be proof that there was no justification for applicant to have approached the Court in the manner he did.
Within this scenario, I am of the opinion that failure by applicant to file his reply leads me to proceed on the assumption that respondent's version is not only probable but also credible. To this end, the locus classicus is the case of Plascon-Evans Paints v Van Riebeeck 1984 (3) SA 623. At any rate, I have already shown that applicant himself made a similar averment in his founding affidavit to wit, negotiations were afoot which fact also confirms respondent's version.
In addition, I am of the view that this fact was indeed very material and ought to have been placed before the Court at the time applicant applied for an interim order. I have no doubt in mind that it would have influenced the
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Court in making the decision whether or not to grant the rule nisi. The effect of non-disclosure of a material fact is also discussed In Herbstein & Van Winsen's work The Civil Practice of the Superior Courts in South Africa 2nd Edition at p 94 where the learned authors postulate that:
"The utmost good faith must be observed by litigants making ex parte applications in placing material facts before the court; so much so that if an order has been made upon an ex parte application and it appears that material facts have been kept back, whether willfully and mala fide or negligently, which might have influenced the court whether to make an order or not, the court has a discretion to set the order aside with costs on the grounds of non-disclosure.
With this principle in my mind, I find that this point was also well taken by respondent and accordingly find that the rule nisi should be discharged on the points in limine and without going into the merits. I so order.
COSTS
Respondents prayed for an order of costs on a punitive scale for what they term an abuse of court process by applicant. I cannot but agree with them on this point. This was certainly an unnecessary and frivolous application which was moved in total disregard of the Rules of Court. It definitely deserves censure and only confirms that indeed some legal practitioners refuse to take heed of the Courts' persistent warnings to desist from this kind of practice.
In the Matela's Case p 16 (supra), the Court of Appeal issued a serious warning against legal practitioners who continue to disregard the requirements of the Rules. In the later case of 'Mapuseletso Mahlakeng (supra) the Court of Appeal made an order that the concerned counsel
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should pay costs de bonis propriis and that be not be entitled to recover any of the costs from applicants.
However, in casu, I do not think that the present applicant's counsel was the one guilty of gross abuse of court process for as I have shown, he only came in at a much later stage after the application had already been moved and an interim order granted. Thus, an ordering that he should pay punitive costs would not be fair in my opinion.
Instead, from the facts before the Court, I have come to the conclusion that applicant was the one guilty of engaging this Court in delaying tactics which were meant to frustrate respondent from executing the order granted in its favour. This is more so when account is taken of the fact that applicant is not even denying that he is indebted to respondent either in whole or in part.
I therefore order that applicant should pay costs hereof on an attorney and client scale.
N. MAJARA
JUDGE
For applicant : Mr. Fuma
For respondent : Mr. Daffue
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