HIGH COURT OF LESOTHO
(LESOTHO) LTD RESPONDENT
by the Honourable Madam Justice N. Majara on the 26th September, 2007
herein approached the Court on Notice of Motion for an order as
a Rule Nisi be issued calling upon Respondent/Plaintiff to show
cause, if any, on the date and time to be determined by this
Rules of court regarding form and service shall not be dispensed
with on account of urgency thereof.
of the Writ dated on 12th September 2006 shall not be stayed
pendente lite finalization of negotiations that have been
into between the parties herein.
in CIV/T/107/06 shall not be rescinded.
prayers 1(a) and (c) operate with immediate effect as an interim
application is opposed with respondents raising two points in limine
to wit, lack of urgency and non-compliance with the Rules
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.
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
April. He added that applicant had been granted the interim order
without notice to the respondent in September 2006 and had
changing counsel as a delaying tactic.
Daffue argued further that even the period for filing a replying
affidavit had long lapsed so that a postponement would not
meaningful purpose had to in that applicant was barred from filing
any further affidavits which means that his legal
to make do with the papers that had already been filed of record.
heard both sides I came to the conclusion that there was no valid
reason for granting applicant the postponement sought especially
history of the matter as was relayed to the Court. I therefore
dismissed the application and proceeded to hear the matter. I
also mention that at the time of the application, applicant had
indeed not filed any reply.
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
non-compliance with the Rules of Court.
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.
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.
non-disclosure of material facts, it was respondent/plaintiffs case
that as evidenced by the affidavit of Mr. D. G. Roberts,
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
until 26th November 2006 to enable applicant to arrange his finances
and come up with an acceptable proposal for settling
Daffue pointed out that when the application was moved on the 25th
September 2006 defendant chose not to inform the Court about
arrangement which would show the Court that the matter was not urgent
at all. He accordingly prayed that the rule nisi should
with costs on a punitive scale.
response, Mr. Fuma submitted that as it was averred by applicant in
his founding affidavit, a writ of execution is normally
accordance with judgment after which attachment and sale will follow
to satisfy a debt. He added that despite there having
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.
issue of non-disclosure, counsel for applicant argued that the facts
as mentioned by Mr. Daffue regarding talks between the
and/or their representatives would not have influenced the Court in
any manner as the said facts were not material.
immediately proceed to deal with the two points.
is dealt with in the provisions of High Court Rule 8(22) (b) which
provides as follows :-
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
hearing in due course if the periods presented by this Rule were
followed. " (my underlining)
although the matter was purportedly moved on notice of motion, no
such notice was served on the respondents thus effectively
them the opportunity to file their notice of intention to oppose. In
the accompanying certificate of urgency, Mr. Adolph
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,
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. "
founding affidavits in turn contain averments a brief summary of
which is that the present applicant acknowledged being indebted
respondent/plaintiff and that they were in the middle of negotiating
a settlement out of court. Further, that it was never his
to dispute existence of the loan. Applicant continues as follows at
"To my shock and utter dismay the next thing I received a writ
of execution to satisfy a judgment debt. I was really shocked
when the writ was served on me I was in fact expecting the results of
the negotiations towards settlement."
of urgency has been extensively dealt with by both the Court of
Appeal and the High Court time and again. Authorities
abound with regard to under what circumstances should a litigant
approach the Court on an urgent basis and without giving
notice to the other side.
although applicant through his attorneys approached the Court on an
urgent basis and purportedly on notice, he failed to
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
relief in a hearing in due course if the prescribed periods were
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-
LLR/LB 13 the Court of Appeal has emphatically stated that orders
sought without notice to the other party 'should only be
without notice where this is rigorously justified (where, for
instance, there is extreme urgency or the need to prevent
from being frustrated where any prior notice could well have that
effect)' Per Steyn P in Matela's Case (supra) at pl6.
case further lays down the requirement that it is not enough for
counsel to certify urgency but to shortly state the grounds
in his certificate of urgency.
back to the present case, not only has these requirements not been
met, but perusal of the record reveals that parties were
middle of negotiations, which in my opinion is proof that there was
no urgency in the matter whether real or imagined, that
the manner in which
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.
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
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.
this scenario, I am of the opinion that failure by applicant to file
his reply leads me to proceed on the assumption that
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
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
applied for an interim order. I have no doubt in mind that it would
have influenced the
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;
much so that if an order has been made upon an ex parte application
and it appears that material facts have been kept back,
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.
principle in my mind, I find that this point was also well taken by
respondent and accordingly find that the rule nisi
discharged on the points in limine and without going into the merits.
I so order.
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.
Matela's Case p 16 (supra), the Court of Appeal issued a serious
warning against legal practitioners who continue to disregard
requirements of the Rules. In the later case of 'Mapuseletso
Mahlakeng (supra) the Court of Appeal made an order that the
pay costs de bonis propriis and that be not be entitled to recover
any of the costs from applicants.
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.
from the facts before the Court, I have come to the conclusion that
applicant was the one guilty of engaging this Court
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.
therefore order that applicant should pay costs hereof on an attorney
and client scale.
applicant : Mr. Fuma
respondent : Mr. Daffue
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