CIV/520/2006

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

STANDARD
BANK PETITIONER

AND

TSEHLO
MOSES RAMAROU RESPONDENT

JUDGEMENT

DELIVERED
BY THE HONOURABLE MRS JUSTICE KJ. GUNI18th DAY OF APRIL 2007

1. PARTIES
   TO THE DISPUTE

   
   

The
Petitioner In this matter approached this court by way of an ex-parte
application for the sequestration of the respondent's
estate. The
petitioner is STANDARD LESOTHO BANK LIMITED, a company duty
registered in terms of the Company Laws of THE KINGDOM
OF LESOTHO,
with its principal place of business at KINGSWAY, MASERU, LESOTHO.
The respondent is TSEHLO MOSES RAMAROU, a major
Mosotho Male person
and a businessman who operates as a hawker and a taxi owner. The
petitioner obtained ex-parte the provisional
sequestration order in
the following terms:-

PROVISIONAL
ORDER OF SEQUESTRATION

1. The
   Estate of the Respondent is placed under compulsory provisional
   sequestration in the hands of the Master of the High Court.

   
   

2. A
   Rule Nisi is hereby issued, returnable on the 5th day of February
   2007, at 9:30 am and the Respondent is called upon to show
   cause why
   this Provisional Order of Sequestration should not be made final and
   why the cost hereof shaft not be paid from the
   Respondent's estate,

   
   

3. The
   Master is directed to appoint Stefan Carl Buys as the Provisional
   Trustee with leave in terms of Section 18 (3) of the Insolvency

   Proclamation No. 51 of 1957 under the direction of the Master to
   dispose off any movable or immovable property forming part of
   the
   estate of the Respondent and/or the further powers set out in the
   aforesaid Proclamation,

   
   

4. The
   costs of this Application be costs in the estate of the Respondent.

   
   

The
respondent anticipated the return date of the said Rule Nisi but
could not find an opportunity to be heard. The matter was finally

heard on the return date of the said rule NISI. The rule was
discharged with costs on the 12th March 2007. The reasons were

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given but
as the judgment was not typed, no copies of the judgment were made
available to the parties. They are only being made
avarlable now
18/04/07.

At the
commencement of the hearing of the matter, the parties agreed mat the
attorney for the petitioner - Mr Buys, should not seek
appointment as
the trustee and that he should not be appointed as such by the court

2. POINTS
   IN LIMINE

   
   

The
following points in limine were raised:-

1 - "The
Non joinder of the essential party.

2 - The
material non disciosure of important relevant facts I propose to deaf
with these points of law only in resolving this dispute
between these
two partes.

1. NON-JOINDER
   OF MATERIAL AND ESSENTIAL PARTY

   
   

According
to the petitioner, the respondent is married in community of
property. The petitioner has apparently conducted some business

transactions with the respondent's wife. The petitioner had entered
into a HIRE PURCHASE AGREEMENT with the respondent's wife,
for the
purchase of a Motor Vehicle. It is the petitioner's averments at
paragraph 11 of the Petition that there is "still
a balance
due". There is no complaint of any kind of a failure by the
respondent's wife to pay

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for that
Motor Vehicle. For no apparent reason against her, the petitioner has
repossessed that Motor Vehicle on the pretext that
In terms of the
Agreement the Motor Vehicle remains the bank property as long as
there is some balance due. Without joining her
as a party, the
respondents interest in that Motor Vehicle have been interfered with.
Apart from her own specific property such
as the said Motor Vehicle
the respondent's wife because of her marriage in community of
property, which the petitioner acknowledges,
she is entitled to be
joined in these proceedings which seek sequestration of their joined
estate.

LITIGATION
BY OR AGAINST SPOUSES

In terms
of SECTION 10 (6) LEGAL CAPACITY OF MARRIED PERSONS ACT 2006, the
respondent should have teen sued together and jointly
with his wife.
The relevant portion of this section reads as follows:-

'(6) An
application for sequestration of a Joint estate shall be made against
both spouses (my )own underlining to highlight the
most relevant
portions to the present matter) NO application for the sequestration
of the estate of a debtor shall be dismissed
on the ground that the
debtor's estate is a joint estate If –

1. The
   applicant satisfies the court that reasonable steps were taken by
   the applicant

   
   

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2. The
   applicant was unable to establish whether the debtor is married in
   community of property or [was unable to] find the name
   of address of
   the spouse of the debtor?

   
   

The
petitioner in our case has full knowledge of the names and address of
the spouse. The petitioner has entered into HIRE PURCHASE
AGREEMENT
with the respondents wife. The petitioner intends repossessing and
taking the Motor Vehicle -subject of the HIRE PURCHASE
AGREEMENT
between it and the respondent's wife as part of the joint estate to
be sequestrated. Despite knowing the names and address
of the
respondent's wife, the petitioner failed to join her in these
proceedings. Despite the knowledge that the respondent is
married in
community of property with his wife [this knowledge is expressed at
Paragraph 11 of the Petition] the petitioner elected
to proceed
against the husband -respondent alone to the prejudice of the
interests of the wife In the joint estate. On this ground
alone, this
petition must fart.

2. NON
   DISCLOSURE OF MATERIAL AND RELEVANT FACTS

   
   

ft is a
trite law that there is a duty on the petitioner who proceeds to
court ex-parte to observe an obligation of good faith and
make a full
and frank disclosure of all material facts.

VANDEN
BERGH V KYREAKOU1954 (4) SA151 BARCLAYS BANK V GILES 1931 TPD 911

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in the
present matter there are very serious material non-disdosures. The
petitioner merely makes only a mention that the respondent
conducts
various specified accounts in that petitioning bank, it is not
alleged for how long the respondent has been the customer
of this
bank. Although it is alleged that his accounts In that bank include
loan accounts, no mention is made of the manner in
which such
accounts are conducted. The respondent avers that he paid faithfully
for all the loans he borrowed from this bank. All
the loans are fully
paid up. It is apparent that there was no dishonesty from the
respondent who avers that he did not disappear
or cause the motor
vehicles to disappear before he finished paying fully for all of
them. Therefore he cannot now cause disappearance
of fully paid up
Motor Vehicles. the respondent argues that the petitioner should have
disclosed the fact that for years this respondent
conducted
faithfully and honestly all his accounts in that bank.

The
petitioner further alleged that there was collusion between the
respondent and the employee of the bank. There is no full and
frank
disclosure of the alleged collusion. When and trow it occurred? The
petitioner alleges that the proper banking procedures
were not
followed. How and by who? The clearance of the cheques is conducted
by the bank - not by the customer. The knowledge of
when and how to
dear any cheque is peculiarly in the expertise of the bank. How is
the respondent involved in the failure by the
bank staff to follow
the bank's clearance procedures?

In this
collusion what is the part played by the bank? To what extend is the
alleged toss the responsibility of the bank? The customer
was told by
the bank that all was well with the cheque. It is the bank which
informed the respondent that the cheque was good.
It is the bank
which told the respondent that he can withdraw the money and the bank
accepted the withdrawal. Why? Because there
was a collusion with the
petitioner. The court should be given full disclosure of the manner
and extend of the collusion between
the petitioner and the respondent
Failure to disclose causes this petition to fail

On these
points in limine, this petition must fail and therefore the Rule NISI
is discharged with costs.

K.J. GUNI

JUDGE

For
Applicant: Du Preez, Liebetrau & Co

For
Respondent messrs T, Mataaene & Co