CIV/APN/325/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

HENDRIK
JACOBUS FREDERIK STEYN Applicant /Petitioner

N O IN
HIS CAPACITY AS PROVISIONAL

TRUSTEE
OF THE ESTATE GIUSEPPE FLORIO

and

LESOTHO
HOTELS INTERNATIONAL (PTY) LTD 1st Respondent

MACHACHE
DIAMOND CUTTING WORKS (PTY) LIMITED 2nd Respondent

LESOTHO
QUALITY AGGREGATE INDUSTRIES (PTY) LTD 3rd Respondent

MACHACHE
PROPERTIES (PTY) LTD 4th Respondent

C J C
(PTY) LTD (BOCCACCIO RESTAURANT) 5th Respondent

MACHACHE
HOLDINGS (PTY) LTD 6th Respondent

MOUNTAIN
VIEW HOTEL (PTY) LTD 7th Respondent

MALIBAMATSO
MINING (PTY) LTD 8th Respondent

MACHACHE
DRILLING (PTY) LTD 9th Respondent

STONE
CRUSHERS (PTY) LTD 10th Respondent

RULING

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 24th day of October,
1988

This is
an application that the respondent companies be placed under
provisional compulsory liquidation in the hands of the Master
of the
High Court of Lesotho. On the 19th October,

2

1988 the
applicant/petitioner was appointed as provisional trustee of the
insolvent estate of Guiseppe Florio.

The
respondents are all companies duly registered as such in terms of the
Companies Act 1967 of the Kingdom of Lesotho and are carrying
on
business variously as such within the Kingdom of Lesotho.

The
intention of the petitioner was to move this application/petition as
an ex parte application but Mr. Buys of the firm of attorneys
styled
Du Preez, Liebetru & Co. got wind of the fact that Mr. Florio had
been provisionally sequestrated and that an application
was to be
made to obtain a provisional compulsory liquidation of the respondent
companies: He approached the petitioner as well
as Mr. Fick, counsel
for the applicant, but failed to get any information from them.

On Friday
the 21st October, when the papers of this application were placed
before the Assistant Registrar indicated to me that
Mr. Koornhof of
the same firm as Mr. Buys had informed him that the application was
being opposed. I then decided to hear the matter
in open Court. Mr.
Koornhof submitted that he had been instructed by the 1st respondent
to oppose the matter and asked the Court
to order the petitioner to
serve him or his client with the Notice of Motion together with all
the accompanying

3

documents
because the 1st respondent intends to oppose the petition. He
submitted that by refusing to give the respondents notice
the
petitioner wanted to get an order against the respondent companies
and yet he is aware that the matter is opposed.

Mr. Fick
submitted that Mr. Koornhof had no locus standi inasmuch as Mr.
Florio who is the majority share­holder in all the
respondent
companies and director, having been declared insolvent, the
provisional trustee has stepped into his shoes. He submitted
that Mr.
Koornhof has no valid instructions.

In
dealing with company law the fundamental idea that has to be borne in
mind is that a company, although consisting of individuals,
has a
personality entirely distnict from them. It is itself a person in the
true sense. Mr. Florio may have be the holder of majority
shares in
all the respondent companies but that does not mean that his property
and the property of these companies should be taken
as his property.
There are other shareholders whose interests must be protected.

It seems
to me that the absence of Mr. Florio from Lesotho does not
necessarily mean that the activities of the respondent companies
have
come to a standstill because as Mr. Koornhof alleges he has been
instructed by a managing director of the respondent companies.

Companies

4

usually
have boards of directors who manage their businesses, make their
contracts, and take care of their properties. I shall assume
that the
respondents were run in normal way and that they had board of
directors, or if Mr. Florio was the sole director this shall
be
proved by evidence in the normal way.

I am of
the view that it is only fair that the respondent companies must be
given the chance to be heard before they are placed
under compulsory
liquidation. It would be most unjust to ignore Mr. Koornhof on the
ground that he has no locus standi before he
has been given a chance
to prove by documentary evidence that he got valid instruct ions from
a proper person or persons.

I make
the following order:

1. The
   petitioner must serve the respondent companies with the Notice of
   Motion and the accompanying documents on or before the 26th
   October,
   1988;

   
   

2. The
   respondents must file their opposing papers on or before the 31st
   October, 1988;

   
   

3. The
   petitioner shall file replying papers on or before the 2nd November,
   1988;

   
   

4. Service
   shall be made upon the respondent companies either at their
   respective registered head office addresses, or at their principal

   places of business.

   
   

5. The
   matter shall be heard on the 4th November, 1988 at 9.30 a.m.

   
   

6. Costs
   shall be costs in the cause.

   
   

5

J.L.
KHEOLA

JUDGE

24th
October, 1988.

For the
Applicant - Mr. Fick

For the
Respondents - Mr. Koornhof.