IN THE HIGH COURT OF LESOTHO
the matter between:-
LESOTHO BUS AND TAXIS OWNERS
LESOTHO PUBLIC MOTOR TRANSPORT….................................2ND
THE REGISTRAR OF COMPANIES…............................................3RD
THE ATTORNEY GENERAL…........................................................4TH
Date of hearing : 12th of
the Honourable Mr Acting Justice J.D. Lyons
on the 18thday of May, 2010
This is an
application for intervention by Makhoabe Mohaleroe and Pule Mohaleroe
(the applicants) brought by application dated 16
The Lesotho Public
Motor Transport Company Pty. Ltd. (‘the company’) had
reached a position where there was some confusion
directorship. Thus, on 27 October 2009 and extra ordinary meeting was
held to resolve this issue. Some of directors were
directors were appointed. The applicants (who were purportedly
directors of the company prior to the meeting) were
The company then
proceeded to lodge for registration the required declaration of
directors (form L) and a copy of the resolution
of the meeting of 27
October 2009. The registrar of companies received the documents but
also received correspondence from the
attorneys for the applicants.
That correspondence gave notice of a dispute regarding the removal of
the applicants (removed directors).
The registrar quite
correctly refused to register the documentation put forward by the
company. The registrar took the position
that as there was a dispute
concerning the removal of the directors this dispute should be
referred to the court for a decision.
The registrar would abide the
The company commenced
proceedings by notice of motion filed on 20 November 2009. The
registrar (and the Attorney General by nomination)
was named as the
Not surprisingly the
applicants take the view that, as directors who were removed by the
company’s action, they have an interest
in these proceedings.
They seek to intervene.
On reading the heads
of argument advanced by the respondent (plaintiff in the main action)
I note the allegation that the applicants
engaged in ‘an
unlawful criminalized activity’ (p.4). In the face of this
serious allegation, I have no hesitation
in allowing the application
to intervene. The applicants obviously have an interest and the rules
of natural justice require that
they be given an opportunity to be
heard. It is unthinkable and an obvious anathema to any civilized
sense of justice to deny any
person a right of hearing when such
serious allegations are raised. No court could ever be expected to
entertain such a submission,
let alone be expected to rule on it, in
the absence of hearing from those against whom the allegation is
made. Any submission to
the contrary is entirely misconceived.
The matter of the
originating Notice of Motion is set for hearing on 28 June.
material is to be filed by 21 June.
Heads of argument are
to be filed by midday on Thursday, 24 June. I would be grateful if
council would do two things when they drafting
their heads of
argument. Would they please set out in the opening paragraph a list
of the material they are relying on. If they
could also see to it
that my clerk is immediately given a copy of the heads. This will
give her the opportunity to check that all
the material relied on is
actually on file and to contact counsel if any material to be relied
on is missing from my file.
Since hearing of this
application I have had the opportunity to gather all of the material,
including that which was not on file
at hearing. I have read counsels
heads of arguments for the intervention which also go into the issue
to be decided in the main
It appears to me to
be a very simple matter.
To my mind the
question is whether or not in removing the directors and appointing
new directors, the company followed the correct
procedure for appointing directors and removing them must be set out
in the articles of association. The articles
of association are the
rules that the company must follow, together of course with the
provisions of the Companies Act 1967.
For the sake of
clarity I will expand a little on my view of the issues.
The first question to
be asked is whether or not the articles set out a procedure for the
removal of directors and appointment of
new ones. If the answer to
this is in the affirmative, then the next question to be asked and
decided (as a question of fact) is
whether or not that procedure was
followed. It may stand for argument (as a matter of law) as to
whether that procedure is to be
strictly followed or otherwise. There
is law on this that can be researched.
If there is a
procedure set out in the articles for the removal of directors and
the appointment of new ones then, in respect of
the former, does the
law or the articles set down any conditions for that removal -- for
example must it be for cause?. If so,
then as a question of fact, has
that cause been established?
These are some of the
questions that occurred to me as relative to the issues at the heart
of this case. Counsel are quite welcome
to raise other issues or even
to disagree with my view of the issues at the heart of this dispute.
orders I make are;
The applicants for intervention (Makhoabe Mohaleroe and Pule
Mohaleroe) are granted leave to intervene in these proceedings.
That the hearing of originating notice of motion filed by the company
be held on 28 June at 10 AM.
That all affidavit material to be relied on at the hearing be filed
by the close of business on 21 June.
That the heads of the argument (including a list of all material to
be relied on) be filed by midday on 24 June.
Applicant : Mr. Kumalo (intended intervenor)
Respondent : Mr. Maqakachane (applicant in the main application)
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law