CIV/APN/361/87
IN THE HIGH COURT OF LESOTHO
In the Application of
OSMAN RAJIE Petitioner
vs
LIONEL NORMAN LENN t/a TRIO SERVICE
CENTRE and/or BATAUNG SPARES Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 22nd day of M April, 1988.
In this matter the petitioner is applying for an order that the estate of the respondent be provisionally sequestrated and be placed in the hands of the Master of the High Court. On the 17th February, 1988 the respondent filed his opposing papers and the replying affidavit was duly filed on the 25 th February, 1988.
On the 10th March, 1988 the petitioner filed a notice of application in terms of Rule 48 (3) of the High Court Rules 1980 in which he applied for an order directing the respondent to furnish security for the petitioner's costs in the sum of M2,500-00 within seven days of the order being granted, falling which respondent's opposition to this petition should be struck off from that record and that the petition be heard as unopposed.
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Rule 48 (3) reads as follows:
"If the party from whom security is demanded contests his liability to give security or if he fails or refuses to furnish such security in the amount demanded or the amount of the Registrar's decision, as the case may be, the other party may apply to court on notice for an order that such security be given and that the proceedings be stayed until such order is complied with."
The respondent did not file any opposing affidavit but his attorney, Mr. Redelinghuys, appeared on the day of the hearing of the application and opposed it. Mr. Addy, for the petitioner, argued that Mr. Redelinghuys had no right of audience because no opposing papers had been filed. I allowed Mr. Redelinghuys to address the Court because the petitioner's attorney was well aware that the application would be opposed. On the 18th March, 1988 when the matter was postponed to a date to be arranged with the Registrar, it was on the understanding that on that dates both matters i.e. the main petition and the application to furnish security for costs, would be argued together. The petitioner's attorney has therefore, not been taken by surprise.
Secondly, the applicant/petitioner has not used Form "J" which appears in the First Schedule to the High Court Rules 1980. Form "J" provides that the respondents be informed that he must file his answering affidavit within fourteen days and that if no notice of intention to oppose is given, the matter shall be set down for hearing as an unopposed application. The applicant in the present case has decided to use the "Short Form" which
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does not warn the respondent to do what has been explained in Form "J", especially the demand that answering affidavits be filed within fourteen days.
Thirdly, it seemed to me that there was a clear misconception by the applicant as to who was entitled to demand security for costs in a matter like the present one. The applicant claims to be an incola of Lesotho and is suing the respondent who is allegedly a peregrinus. The latter is entitled to defend the matter and by so doing is forced to incur expenses in the form of court fees and attorney's fees. In addition to this he is asked to furnish security for the costs of a person who has brought him to court. I do not think that the respondent has to be burdened with the applicant's costs under the present circumstances. He could be compelled to furnish security for applicant's costs if he filed a counterclaim or counter-application. (Thomson, Watson & Co. v. Poverty Bay Farmers' Meat Supply Co., 1924 C.P.F. 93). "The foreigner seeks the aid of our courts to make a claim against an incola and it may be only a matter of chance that the claim of the incola has been the first to be filed of records," Sandock Austral Ltd v. Exploitation Industrielle et Commerciale-Bretic, 1974 (2) S.A. 280 (D).
In the present application the respondent is merely defending an application brought by the applicant and he has not brought any
counter-application. He cannot be compelled to furnish security for costs of the applicant on the mere ground that . he has decided to defend the application
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(Milnes Daimler Ltd. v. Sullivan, 19 C.T.R. 115 quoted in The Civil Practice of the Superior Court in South Africa, 3rd edition, page 254.).
Mr Redelinghuys has submitted that the applicant has failed to comply with Rule 48 (1) which provides that a party to proceedings entitled and desiring security for costs from another shall, as soon as practicable after the commencement of proceedings, deliver a notice setting forth the grounds upon which such security is claimed and the amount demanded. He contends that the application was not brought as soon as practicable after the commencement of these proceedings. He submits that the applicant must be taken to have waived his right even if he had one.
It seems to me that this is not a proper case in which the circumstances show that the applicant can be regarded as having waived his rights. The opposing affidavit was filed on the 17th February, 1988 and on the 10th March, 1988 the applicant filed his application directing respondent to furnish security for his costs It cannot be said that there was an inordinate delay in bringing this application. The applicant had to welt until he had received the opposing papers.
For the reasons stated above I have come to the conclusion that the applicant is not entitled to security for costs. The application is dismissed with costs.
J.L KHEOLA
JUDGE
22nd April, 1988.
