CIV\APN\388\92

CIV\APN\142\93

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

LESOTHO
BANK Applicant

and

MONEHELA
MATSIE lst Respondent

MAISA
JOHANNES MATS'ABA 2nd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 22nd day of
November. 1993

By
agreement of the parties CIV\APN\388\92 and CIAPN\142\92 have been
consolidated because the issues involved are said to be identical.

The respondents obtained spoliation Orders on the 15th February, 1993
and on the 20th April, 1993 respectively. On the 21st April,
1993 the
applicant applied for rescission of the orders and for the stay of
execution in both applications.

At the
bearing of these applications the respondents raised certain points
in limine. The first point was that the applicant has
failed to
comply with the provisions of Rule 27(6)(b) which provides that 'the
party so applying must furnish security to the satisfaction
of the
Registrar for the payment to the other party of the costs of the
default judgment and of the application for

2

rescission
of such judgment

It is
common cause that when the applications for stay of execution and for
rescission were filed, the applicant had not paid any
security in
compliance with the above Rule. In support of this submission Mr,
Mphutlane, attorney for the respondents, referred
to Mokutlulu v.
Solicitor General and others, 1981 (2) L.L.R. in which Rooney, J.
said at p.405:

"The High Court Rules published under Legal Notice No.9 of 1980
have been in operation for nearly two years. I consider that
it is
time that they were observed and applied by attorneys. I believe it
to be the duty of the Registrar to take administrative
action
whenever possible to ensure that the rules are strictly complied with
by all parties."

(See Maia
v. Total Namibia (Pty) Ltd, 1992 (2) S.A. 352 at pp. 352-353).

Mr.
Fischer, counsel for the applicant, submitted that Rule 27,(6) (b)
does not provide for a time limit within which the payment
must be
made. He referred to Adjoodha v. Mario Transport, 1976 (3) S.A. 394
(T.P.D.). The headnote of the case reads as follows;

3

"Respondent had applied for the rescission of a default judgment
granted against it in a Local Division. Respondent did not
furnish
the security for the payment of the cost of the default judgment and
application for rescission thereof when the application
was launched
but tendered to furnish such security during the course of argument
in the application for rescission. The Court
a quo granted the
application subject to the condition that the security for costs
required by the Rule of Court 31 (2) (B) be
furnished within 14 days
of the date of its judgment. In an appeal against such order, the
appellant (plaintiff) contended that
the failure to furnish security
in good time, i.e. at the time of the launching of the application,
was a fatal objection to the
granting of the application for
rescission. Held, that, whilst it was true that the normal practice
was to furnish security at
the outset of the proceedings, the
respondent had furnished security at a proper stage in time, that is
before an order was asked
of the Court.

Held, rather, that a plaintiff's interests were sufficiently
safeguarded to the extent intended by the Rule if, at any stage prior

to an order of rescission being given, the security was furnished or,
as in the

4

present case, a proper tender of security was made and refused by the
plaintiff. Appeal accordingly dismissed."

The Rule
in question was the same with our present Rule.

In the
present case the security bond had already been made on the day the
matter was argued before me. I entirely agree with the
decision in
Adjoodha's case above. The respondents' interests have been
sufficiently safeguarded to the extent intended by the
Rule because
security for costs has been furnished before the order is made.

The
second point raised in limine is that the deponent on behalf of the
applicant lacks locus stndi in judicio on the ground that
the
purported resolution of the Board of Directors, both in the
applications for rescission and stay of execution is of so general
a
character that they amount to insufficient and\or improper authority
to bring all these applications and to oppose the application
for
contempt.

Mr.
Mphutlane referred to Morrison Investment (Pty) Ltd. v. Belle, 1981
(1) L.L.R. 206. In the resent case of The Central Bank of
Lesotho v.
E.H. Phoofolo, C. of A (CIV) No. 6 of 1987 (unreported) at. p.12
Mahomed J.A. (as he then was now President)

5

said:

"The Respondent: had contended in Che Court a quo that there
were two technical grounds on which the Appellant's opposition
should
fail. The first technical ground was that no resolution, evidencing
the authority of the Governor to depose to an affidavit
on behalf of
the Appellant, or to represent the Appellant in the proceedings, was
filed. This objection was without substance,
and was correctly
dismissed by Molai, J. There is no invariable rule which requires a
juristic person to file a formal resolution,
manifesting the
authority of a particular person to represent it in any legal
proceedings. In the present case the authority of
the Governor to
represent the Appellant in the proceedings in the Court a quo appears
amply from the circumstances of the case,
including the filing of the
Notice of Opposition to the application."

In the
present case there is a resolution by the Board of Directors
authorising Mr. Palo Kotelo, Mr Monyane and other Managers of
the
applicant bank to oppose any application instituted by the Bank and
to institute any application on behalf of the Bank and
to do many
other things specified in Annexure "A"

6

to the
opposing affidavit. The purpose or object of such a resolution is to
show that it is the artificial person who is litigating,
so that
when, it comes to payment of costs the artificial person may not come
up with a defence that its employee wag not authorised.
It is clear
from the circumstances of this case that the deponents are acting on
behalf of the Bank and have proper authority.
It does not matter that
the authority is of a general character. We know that there is the
authority by the Bank that they should
do what they have done.

The
resolution appears to have been signed by the Chairman of the Board
of Directors.

Mr.
Mphutlane submitted that an order of mandament van spolie, once
granted is neither appealable nor can it be subject of rescission
or
review. He referred to Universal Engineering (Pty) Ltd v. The Deputy
Sheriff L. 'Nyane and National Trading Bloemfontein (Pty)
Ltd.,
CIV\APN\253\92 (unreported) in which Lehohla, J. said at pp. 2-3:

"........The biggest problem with regard to spoliation order is
that once it is maintained by the Court that it has been properly

brought before it and that the party complaining of having been
despoiled has made out its case the order that ensues thereon is

final.

7

To my mind, there is no procedure whereby a Rule or an order granted
in that respect can be subject to further application by way
of what
happens in ordinary motion proceedings in which case, the order given
there is in the nature of an interim order which
would be subject to
subsequent hearing before finality is reached.

In spoliation once the party bringing spoliation proceedings has made
a good cause that is the end of the matter. As far as spoliation
is
concerned, the party obtains his order and the position is restored
to the original position which was obtaining between the
parties
before the party who complained of having despoiled was so despoiled.
So a party who is aggrieved by an order given under
such
circumstances, to my mind, has only one option, namely, to sue."

With
great respect to my learned brother, I have difficulty in accepting
his decision because he did not refer to any authority.
There is some
authority to the effect that a spoliation order is appealable. In
Jones and Buckle The Civil Practice of the Magistrates'
Courts in
South Africa, 8th Edition Vol.1 at page 333, the learned authors say
that a spoliation order is a final and definitive
order, and thus
appealable. They

8

refer to
two decisions with which I shall deal presently.

The first
case ie Pretoria Racing Club v. Van Peterean, 1907 T.S. 687 at p. 697
where Smith, J. said:

"In order to decide whether such an order is final or not, I
think the test must be arrived at by considering what the object
of
the proceedings is as a matter of substance. See the judgment of
Romer, L.J., in Re Herbert Reeves 6 Co. (1902) 1 Ch,29).

Now the substantial matter in dispute in the present application was
the right of the respondent to the present possession of certain

property: if an act of spoliation was established then his right was
clear. That was the matter and the only matter decided by
the learned
judge, the consideration that legal proceedings might be subsequently
instituted to test whether the possession could
be legally sustained
appears to me to be foreign to the question at issue, and the order
made was in my opinion a final order within
the meaning of the Rules
of Court.

We were pressed on behalf of the respondent to say that the order was
interlocutory from a consideration

9

of the consequences which would follow if an appeal from it was
allowed. It was pointed out that if an appeal from a spoliation
order
is allowed the result will be to keep the matter in suspense so long
that the remedy may become useless. With regard to this
argument I
would say, in the first place, that if the order is in its nature a
final order; the Court would not hold it to be otherwise
merely
because its execution might be stayed and the remedy granted by it is
delayed. In the second place, the inconveniences spoken
of do not
seem to me to arise from the fact that an appeal from the order is
allowed, but from the staying of execution of the
order. An appeal
from a decision of a judge in Chambers has to be prosecuted within
fourteen days, and the matter should then be
disposed of within a
short time of the making of the order. In my opinion the appeal
should be dismissed with coats."

The
second case is Ball v. Piteane and others, 1911 T.P.D. 853 in which
it was held that a spoliation order made by a Magistrate
is a final
order from which an appeal lies.

I am of
the view that since a spoliation order is a final and definitive
order which is appealable, there is no reason why

10

it should
not be rescindable in terms of Rule 27 (6).

Mr.
Mphutlane submitted that it is trite law that in motion proceedings
the Court will allow only three sets of affidavits. viz.
the founding
affidavit, the answering affidavit and the replying affidavits. It
will not allow any new matter in replying affidavits
or additional
affidavits which have the effect of making a new case or a new cause
of action for the applicant. In this regard
he referred to paragraphs
9.4, 7 and 8.2.

In the
view that I take those matters were not new but were a direct reply
to the specific allegations made in the answering affidavit.

Mr.
Mphutlane submitted that it is well established principle of our law
that as a general rule hearsay evidence must not be contained
in
affidavit. If a litigant wishes to reply on evidence of facts which
are not within his personal knowledge and accordingly to
which he
cannot depose it is necessary to file affidavits of persons other
than himself who are in a position to depose to such
facts.

I
entirely agree with him but I take the view that he was under an
obligation to make a formal application to strike out

11

the
matters that he regards as hearsay evidence.

Rule 29
(5) (a) and (b) read as follows:

"(a) Where any pleading contains averments which are scandalous,
vexatious, argumentative, irrelevant or superfulous the opposite

party may, within the period allowed for delivering any subsequent
pleading; apply for the striking out of the matter, aforesaid,

setting out the grounds upon which the application is made.

2. Such
   an application may be set down on not less than seven days notice to
   the opposing party as an opposed application before
   the motion
   court."

   
   

(See
Elber (Pty) Ltd. v. Silver, 1947 (4) S.A. 173 (W.L.W.). In the
present case the respondents have not made any application in
terms
of the abovementianed rule. Nor have they made any notice not
necessarily a notice on motion.

In the
result all the points raised in limine are dismissed with costs.

12

J.L.
KHEOLA

JUDGE

22nd
November, 1993.

For
Applicant - Mr. Fischer

For
Respondents - Mr. Mphutlane