HIGH COURT OF LESOTHO
MOTEBANG 1st RESPONDENT
TAKALIMANE 2nd RESPONDENT
by the Honourable Mr. Justice W.C.M. Maqutu On the 28th September
24th August 2004, Mr. Ratau appeared for applicant while Mr. Molapo
appeared for first respondent.
hearing argument, I made the following order:-
"There is a real dispute of fact. The rule nisi is discharged.
The parties are ordered to go to trial. There is no order as
brought as an urgent application before Monapathi J and the court
made the following order:-
"Rule nisi granted returnable on 21/08/2005 calling upon
respondents to show cause as prayed returnable as prayed".
21/08/2004, Mr. Molapo extended the rule to 24/08/2004 as applicant's
counsel was ill.
24th August 2004 the matter was heard and the court made the order
already stated above.
promised to file reasons for judgment later. This is because
applicant's counsel did not seem to have grasped the distinction
between matters that should - in the High Court –
brought by way of action through summons followed by pleadings, and
matters that may be brought by way of application even though
should ordinarily brought by way of action. This flexibility does not
exist in the magistrate court. In the magistrate court
should be brought by way of application are specified in its statute,
the rest have to be initiated through summons.
In general application
proceedings provide interim and urgent relief. Prest in The Law and
Practice of Interdicts at page 46, dealing
with final interdicts
"The Courts will, in general, grant an interdict when applicant
can obtain adequate redress by an award of damages".
applicant should have stated in her founding affidavit facts that
disclosed her locus standi in her founding affidavit,
I did not think
I should punish her for that. The reason was that she appeared on the
face of the papers to be a publica mercatrix.
objection was a valid
technical objection. The joining of second respondent was an
inconsequential error that did not inconvenience or prejudice
respondent in any way - so I told Mr. Molapo for respondent that and
Mr. Ratau for applicant that they should get into the
merits of the
had brought an application in the following terms :-
ordinary rules pertaining to rules of service be dispensed with on
account of urgency.
rule nisi issue and is hereby issued returnable on the date and time
to be determined calling upon the respondents to show
cause if any
why the following orders shall not be made final:-
respondent shall not be restrained and interdicted from disposing in
any way the entire stock in the business premises of
first respondent shall not be ordered to release the entire stock to
first respondent shall not be ordered to pay costs of this
applicant be granted such further and/or alternative relief.
prayers 1 and 2 (a) operate with immediate effect as interim relief.
of the dispute according to plaintiff Applicant had been first
respondent's employer. He trusted first respondent and they
good working relationship over "a considerable period".
(a) Towards the end of last year 2005 applicant says:-"I agreed
to assist him in setting himself up as a business man. He
capital nor any resources whatsoever to start a business".
© First respondent got a trader's licence. The parties agreed
that first respondent would rent trading premises. Applicant
"We agreed that I will buy a bulk of stock ... I bought stock
which was placed in the said premises situated at Ha Lesohoele
Leribe. THE AGREEMENT WAS ORAL".
The agreement was that first respondent would sell all the stock and
give applicant "money of all the sales".
During this period applicant "would on the other hand be paying
him money which he (first respondent) would be saving
with the business after my (applicant's) stock was all sold:-
Applicant "would of course advance him either money or stock so
that he would not struggle after applicant's stock is
Applicant said at paragraph 9 of his affidavit:-
"(i) The initial stock that I gave him was to the amount of
M96,000.00 or so (ninety thousand maluti);
(ii) This was in February 2006 after his application for a trader's
licence had been approved;
(iii) Since then he has been working at the shop with some of my
employees that I lent him since he could not manage on his own
the bulk of his stock";
(i) Since 11th August 2006, first respondent has closed the shop and
is denying applicant access. First respondent has ensured
applicant does not have access to the shop so that he could inspect
what applicant called "my stock" - meaning it
(j) Applicant says the stock that first respondent denies him access
to is worth about M63,185.00. Consequently applicant is in
economic loss and irreparable harm because of first respondent's
Applicant concludes his evidentiary averments as follows:
"I have a right to the stock as owner thereof. I verily aver
that I cannot be afforded substantial relief in due course. The
balance of convenience favours the granting of an interim relief.
respondents were served with this interim order that prayed for final
relief not an interim relief on confirmation.
"That rule nisi issue and is hereby issued returnable on the
21st day of August 2006 calling upon the respondents to show
any why the following orders shall not be made final:-
prayers 1 and 2 (a) operate with immediate effect as interim relief7.
respondent after being served with the Order of the Court and the
application answered applicant as follows:-
has not disclosed her locus standi i.e. whether she is married or
are apparent disputes or fact that exist ex facie the application
which disputes go to the root of matter and which cannot
on the papers.
respondent admitted that he and applicant had agreed that applicant
should set "himself up as a businessman",
but that was in
the middle of 2005" not late 2005 as applicant alleges.
respondent denied the rest of the allegations of applicant. He then
said "we agreed that whenever she goes to buy the
stock for her
shop at Maputsoe, a shop which I spent most of the time at she will
include a stock for my shop - which at all
material times did not
Ml7,000.00. I aver I have no proof of that in as much as she kept the
invoices, as she was the one buying".
respondent denies applicant's version. He said:-
was agreed that applicant would be paid for the stock after it was
(ii) First respondent she paid applicant's money back, gave her some
money to pay stock for first respondent's shop as well - this
because applicant had good relations with wholesalers in the Republic
of South Africa and Qwa-Qwa;
(iii) Because of good relations, payments were not recorded. Business
was not doing well - what she now owes applicant does not
10,000.00. Applicant took some of the
records due to the fracas that arose -consequently he is unable to
give the precise figure;
(iv) First respondent denies he was selling applicant's stock and
that he was supposed to give applicant all the money because
entitled to profit and to pay rent;
(v) First respondent denies he was an employee of applicant when he
was running his own business for which he had a trading license;
(f) First respondent denies Fusi Hosha was applicant's employee - in
fact Fusi Hosha was applicant's employee. First respondent
out at applicant's shop at Maputsoe shuttling between the two shops
that is why he employed Fusi Hosha. Applicant for
that reason did not
that were loaned to applicant. Applicant fired Pusi Hosha for
Applicant says as time went on he was obliged to devote more time to
his business. As applicant wanted to run first respondent's
business, he denied applicant access to first respondent's business
premises that is why they clashed. They also clashed because
respondent no more went to applicant's shop regularly and for other
respondent has denied that he ever closed his shop and says even if
he did it was not applicant's business. First respondent
says he was
surprised to be served with a court order. The shop was open until
the deputy sheriff directed him to close the shop.
respondent said in his Answering affidavit that between 9.00 and
9.30 p.m of the 15th August 2006 applicant telephoned him
offered to buy first
business for M5000.00 (five thousand maluti) and if applicant agreed,
she would withdraw this application.
respondent challenged applicant to sue him for the debt he owes her
because the stock in trade belongs to him. First respondent
that he owes applicant M63,150.00 - which applicant does
substantiate. He owes applicant an amount that is not more than
10,000.00. First respondent says he is the one suffering prejudice
because some of the stock-in-trade consists of perishable
respondent says the way applicant proceeded is an abuse of court
process - this application should be dismissed and costs
on a high scale.
filed a replying affidavit in which she showed she was publica
mercatrix. She said there was no genuine
of fact. Applicant denied the deputed stock never exceeded M
17000.00. She said the inventory of the stock-n-trade which
deputy sheriff took at first respondent's shop would prove the
stock-in-trade exceeded M 17000.00. Applicant said it is false
the stock-in-trade sent to applicant's shop does not have proper
records. Applicant says he paid rent and all employees in
respondent's shop. Applicant says he has a lot of documents in her
possession and a lot of receipts locked in first respondent's
Fusi Hosha was not first respondent's employee but hers.
might request Fusi Hosha to give evidence.
argument through Mr. Ratau
first respondent be restrained from selling the stock-in-trade and
be directed to hand over the entire stock-in-stock to
respondent was her employee and she was a publica mercatrix entitled
to run a business and to sue.
dispute first respondent is artificial. "First respondent has
failed to raise any such dispute so that the matter could
evidence or be dismissed. This is born by the following factors:-
(i) It is not disputed that applicant was at all material times an
employee of applicant. It is conceded that second respondent
direct or interest in the issue;
(ii) It is also not disputed that applicant had no business to start
his own business;
(iii) Where could first respondent obtain the stock? "The
inevitable answer is simply that the stock belongs to applicant.
apparent dispute has been raised therefore"
(iv) Applicant has established a prima facie right, a well-grounded
apprehension of irreparable
the balance of convenience favours the granting of interim relief.
Furthermore, applicant has no other satisfactory relief.
respondent's argument per Mr. Molapo L.E.
of second respondent.
standi of applicant and said it had to be proved in the affidavit.
Molapo argued that there was a genuine dispute of fact because:-
stock-in-trade was merely estimated to be M96000.00 -"there was
no supporting documentation";
Applicant was in possession of the stock and he explains it was never
the agreement that the stock in the shop would remain
property. This requires viva voce evidence in order for the court to
resolve this issue;
Applicant is not allowed at this stage to bring oral evidence or
documentary evidence because "a party stands or falls
contents (averments) of their founding affidavits;
Applicant must prove by acceptable evidence that ownership of the
stock in the shop belonged to her. This is disputed by the
respondent's possession in any event raises the
of ownership that applicant has not brought any evidence to rebut.
of the evidence
following facts are admitted:-
applicant and first respondent were once on good terms;
First respondent was a trusted employee of applicant and applicant
and first respondent should set first respondent in business;
That first respondent should obtain a license around middle of 2005
or towards the end of 2005;
First respondent obtained a license and began to trade and the
stock-in-trade was provided by applicant;
(v) First respondent used to help at the shop of applicant as he had
been his most experienced employee;
(vi) The parties later quarreled and first respondent did not want
applicant to have access to the shop that first respondent had
and in which first respondent was the license holder.
(b) Points of disagreement
(i) The precise terms of the agreement between the parties when
applicant provided stock for first respondent's shop;
(ii) Applicant says first respondent remained his paid employee.
First respondent says he only helped applicant at applicant's
Maputsoe but stopped when his shop made him too busy to help
(iii) Applicant says she provided stock valued at M96000.00 - while
first respondent says applicant provided stock valued at about
17000.00 neither side has provided any documentary proof of its
(iv) Applicant says first respondent owes M63185.00 for the stock
while first respondent only owes about M 10000.00. There is no
documentary proof of this also;
(v) Applicant claims the stock in trade still belongs to her while
first respondent says the stock in the shop belongs to him.
He had to
sell at a profit and pay rent. Applicant only says he was paying the
rent of first respondent's trading premises in applicant's
(vi) Applicant omitted to deal with first respondent's allegation
that just after first respondent had
received this application applicant offered to buy first respondent's
business for M5000.00;
(vii) Applicant did not mention in her founding affidavit that Fusi
Hosha was her employee - she only said, Fusi Hosh said first
respondent had closed the shop. First respondent in his answering
affidavit said Fusi Hosha is his employee that he dismissed for
negligence. In their replying affidavit applicant said Fusi Hosha was
her employee not the applicants.
(viii) Applicant said she provided first respondent with her
employees to help run first respondent's business. First respondent
denied this and challenged applicant to name them but applicant did
not name them but only insisted this was true.
consequences of dispute of fact in application
In K.T. Deke v M.M. Qhoai & 4 Ors 1985 LLR 458 faced with a
serious dispute of fact Sir Peter Allen J at page 459 said:-
"Quite clearly the applicant's claim should have been brought by
means of summons so that witnesses could be produced and
adduced in support of the claim and against it. The matter should
never have been filed as an application since obviously
it cannot be
decided upon affidavits".
approach followed by Kheola J in M Majara v T. Majara & Another
1985-90 LLR 344 at page 345 when he said:-
"Rule 8(14) of the Rules of the High Court 1980 where a dispute
of fact should have been foreseen the court may dismiss the
application, in the present case the applicant
have foreseen when he launched this application that a very serious
dispute of fact is going to arise".
in his argument assumed that what applicant said in her affidavit -
was fact even when it was denied and different allegations
the first respondent. When that happens an issue of credibility
arises which can only be resolved by viva voce evidence.
has to see and hear witnesses - who have to be cross-examined, so
that the court can be in a position to determine who
is telling the
truth and therefore has to be believed.
are drawn by legal practitioners and typed in their offices and then
signed by the parties. Once there is dispute of
fact the court should
not choose which type-writer to believe or which affidavit is nicer.
It has to hear the parties directly,
see them for itself and then
decide who is credible.
application proceedings affidavits and their annexure are both
evidence and pleadings. The court can only
the matter without hearing evidence if it is convinced by the papers
before it and the surrounding circumstances that
the dispute is
artificially being manufactures to defeat applicant's application
unfairly - it does not in fact exist.
case I am satisfied that there is a genuine dispute of fact that
applicant ought to have foreseen. The applicant deliberately
substantiate his claim that he provided first respondent with stock
worth M96000.00 even when she was challenged to do
so. If a person
set another in business, what is provided is normally valued and paid
as a debt. The weakness of applicant's case
is that she merely
assumed her allegation carries even when it is disputed.
counsel was not entitled to say in his Heads of Argument that there
is no genuine dispute of fact - and when during
attention was drawn to disputed issues - only then ask the court to
hear viva voce evidence of Fusi Hosha. He should
have sought this
type of corroboration
very beginning by attaching Fusi Hosha's affidavit. Applicant was not
entitled to say in her replying affidavit for the
first time that
Fusi Hosha as her employee.
a difference between final interdicts, interdicts of a temporary
nature such as interim interdicts and interlocutory interdicts.
Prest in the Law and Practice of Interdicts has stated at pages 42 to
"Unlike an interim interdict which does not involve a final
determination of the rights of the parties, a final interdict
such a final determination of rights. It is granted to secure a
permanent cessation of an unlawful course of conduct or
problem I have is that applicant in his affidavit says:-
"The balance of convenience favours the granting of interim
relief to avert irreparable loss on my part".
rule nisi that has been issued is framed in terms that seek a final
interdict and the return of the stock-in-trade by first
the applicant. In a final interdict there are three requirements that
have to be met. These are:-
clear right which has two elements, namely - a right, which is a
matter of substantive law - ad the clarity of such a right,
a matter of evidence.
act of interference- which implies an act actually done to interfere
with the rights an applicant actually possesses - this
already committed - and applicant fears might be committed in
other remedy - this implies there should be no other satisfactory
remedy. It follows therefore that in general, the court will
grant a final interdict if applicant can obtain an adequate redress
through an award of damages. It is for this reason that
UDC Bank v Seacat Leasing & Finance & Another 1979 (4) SA 682
at page 696 said where an applicant has established
a clear right the
court in its discretion might in refusing a final interdict rather
grant applicant an interim interdict as an
case before me applicant as a matter of substantive law did not show
a right to the stock in trade in the shop of first respondent.
was shown and conceded was that first respondent owed applicant about
M63185.00 or about M 10000.00 (ten thousand Maluti).
There was no
invasion of applicant's right. Stock was supplied by one licensed
trader to another. There was such s dispute of fact
ought to have foreseen it when he brought these proceedings.
Consequently applicant ought not to apply for a final
the return of the stock that had been partially paid for. There was
another relief of suing for the balance owing.
This of course should
have been claimed by way of summons and pleadings since applicant
persuade the court of the amount owing through viva voce evidence
since she was not sure of the exact amount and did not
any documentary proof of the debt in this application.
appeared since some of the stock was perishable, the way out was that
it should be sold by the first respondent. So I discharged
surprised that the deputy sheriff took an inventory of the stock in
trade without authorization by any court order. This may
do good in
future, but applicant stood and fell by the facts that had been
averred in her founding affidavit.
was clear applicant was owed some money, I discharged the rule nisi
without directing that applicant should pay costs.
counsel been slightly more experienced, I would have directed
applicant to pay costs.
Applicant : Mr. Ratau
Respondent : Mr. Molapo
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