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 10^th
August, 2007

Applicant herein
approached the Court on Notice of Motion for an order as follows:-

1. 
   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:-

   
   
   
   

   1. the
      Rules of court regarding form and service shall not be dispensed
      with on account of urgency thereof.

      
      
   
   

2. Execution
   of the Writ dated on 12^th
   September 2006 shall not be stayed pendente
   lite
   finalization of negotiations that have been entered into between
   the parties herein.

   
   

3. Judgment
   in CIV/T/107/06 shall not be rescinded.

   
   

2. 
   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 7^th
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.
De Beer
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. De Beer
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 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.
De Beer
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 patem
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/plaintiff’s 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^th
September requesting him not to proceed with execution of the order
until 26^th
November 2006 to enable applicant to arrange his finances and come up
with an acceptable proposal for settling his debt.

Mr. De Beer
pointed out that when the application was moved on the 25^th
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.
Fumo
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.
De Beer
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:-

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.

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
at p16.

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 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. De Beer
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 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 2^nd
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’s case (supra)
the Court of Appeal made an order that the concerned counsel 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. Fumo

For
respondent : Mr. De Beer