CofA(CIV)26/
SUMMARY
The judgment in this civil application brought before the Court of Appeal, was prepared by my colleague van den Heever.
The applicant ["the LHDA"] was successful in its suit based on wrongful conduct by the respondent ["Sole"], and was awarded damages. Sole's appeal against that judgment and order is ripe for hearing. In the course of the lengthy trial Sole had persisted in denying that he had money in Switzerland or in possession of Swiss bank account records. After the trial had come to an end the LHDA itself came into possession of copies of Swiss bank records purporting to relate to accounts held by Sole. He did not and will not admit them or that their contents are correct.
The LHDA's application to this Court in so far as it seeks a punitive order that Sole's defence to three of the eleven claims against him be struck out, is misconceived. Assuming this Court has the power to do so, making such an order would be inappropriate at this stage and leave the issues whether the court a quo had correctly found causation and quantum of damages proven, unresolved. Nor can the first
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alternative relief sought, that Sole be ordered to discover the records now, be granted where they were not in his possession. Nor can the order prayed in the further alternative be granted, namely that the LHD A itself be permitted to add the Swiss bank records to the appeal record by one or other of a number of alternative procedures. The founding affidavit does not indicate that they would be admissible per se_ or that the LHDA has. or can obtain,witnesses through whom the Swiss documents could be put before a court here. Nor has any basis been laid for counsel's application that the matter be removed from the roll to enable him to as it were have a second bite at the cherry.
This application is dismissed with costs.
C OF A (CIV) NO.26/99
CIV/T/598/95
IN THE HIGH COURT OF LESOTHO
In the matter between:-
MASUPHA EPHRAEM SOLE APPELLANT
(Respondent in this Application)
and
LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY RESPONDENT
(Applicant in this application)
Held at MASERU
CORAM: J.H. Steyn P
L. van den Heever JA
M.E. Kumleben JA
JUDGMENT
For the sake of convenience I refer to the applicant in the application before us, the Lesotho Highlands Development Authority, as "the LHDA" and the respondent by his surname: Sole.
The LHDA is a body corporate constituted in terms of Section 4 of the LHDA Order of 1986. Sole was employed as its Chief Executive as contemplated by Section 7 of that Order. The LHDA issued summons against him in November 1995, after their relationship had come to an end, setting out eleven varied claims for damages allegedly suffered by the LHDA as the result of wrongful conduct by Sole. Mr Penzhorn for LHDA accepted that only three of these are relevant to the present application, namely those numbered 2,6 and 7 in the particulars of claim
In the lengthy trial dealing with events which had occurred over a period of almost a decade, the LHDA was awarded damages totalling M7 776 311.98 payable by Sole, with costs on a special scale which it is unnecessary to detail here.
Sole's appeal (Civil Appeal No.26/99) is ripe for hearing by this Court. The LHDA, the respondent on appeal, however, on notice of motion seeks an order in the following terms:
"1. The Appellant's appeal under the abovementioned case number is hereby stayed pending the determination of this application.
The Appellant's defence to claims 2,6 and 7 in the Court a quo is hereby struck out, alternatively this matter is referred back to the Court a quo for this issue to be dealt with.
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In the alternative to paragraph 2 above, the Respondent is hereby granted leave to reopen its case for the following to be dealt with by this Honourable Court, alternatively the Court a quo.
3.1 The Appellant is ordered to place before the Court within 7 days of the date of this order the full records of accounts held by him in Switzerland, either now or in the past, alternatively the Respondent is hereby given leave to prove such bank records.
3.2 The Respondent is authorised to lead such further evidence relating to such records as it considers relevant and relating to
such records.
3.3 The Appellant is directed to answer such further questions as may be put to him by the parties or by the Court relating to such bank records.
3.4 The Respondent is authorised to pursue such further remedies as may be available to it."
Mr Marumo, the current Chief Executive of LHDA in his founding affidavit says-
A. The LHDA proved its case and the appeal should be dismissed on the evidence in the appeal record without amplification
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B. He nevertheless sought to amplify his case by the introduction of further evidence on appeal. He urged that Sole was in contempt of the trial court as regards discovery and deliberately obstructed the LHDA from leading further relevant evidence pertaining to claims 2,6 and 7. Consequently
Sole should not be permitted to proceed with his appeal until he has purged his contempt by producing the documents the LHDA had wanted from him.
Justice requires that the LHDA be allowed "to introduce these bank records into evidence and to lead such evidence relating thereto as may be relevant, albeit on appeal."
The founding affidavit with its annexures details the many attempts of the LHDA to compel Sole to discover documents relating to all his bank accounts, including any foreign ones. He consistently denied having one in Switzerland. The LHDA itself produced evidence
indicating that his denial was false, and itself succeeded in obtaining records of accounts in Sole's name in Switzerland. These
documents, about seven lever arch files of them, were received in Lesotho during June of 1999 after the trial had come to an end. The LHDA's attorney wrote to Sole's:
"Please confirm that Mr Sole now admits these records and that you will include them in the Court of Appeal record, coupled with an admission that the entries therein are evidence of the facts suggested therein. This will obviously, in turn, mean that further evidence will have to be led, either before the Court
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of Appeal or the Court a quo.
Unless such an undertaking and admission is forthcoming, we will be compelled to apply to the Court of Appeal of lead this further
evidence either before the Court of Appeal or before the Court a quo."
In reply Sole's attorneys made it clear that:
"our client does not admit the alleged bank records that have been served on him and will most certainly not be included in the Court of Appeal Record for obvious reasons. Any action which you wish to take against our client will be opposed before whatever court you bring the intended proceedings."
As regards the punitive measure of striking out Sole's defences to the three claims, the application by LHDA is misconceived.
Sub-rules 34 (1) to (13) of the Rules of Court deal with pre-hearing steps. Subrule (14) provides for an order during the course of the trial, for the production by any party thereto of "such documents in his power or control relating to any matter in question in such action .... as the court may think just, and the court may deal with such documents, when produced, as it thinks fit." No mention is made of striking out a defence at this stage. Nor were we referred to any provision authorising an appellate tribunal to go even further. Had the trial court struck out Sole's plea before the commencement of the trial, that would not have entitled the LHDA to a favourable judgment in its favour without more. It was obliged to tender evidence to discharge
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the multi-facetted onus which burdened it of establishing not only loss and wrongfulness vis-a-vis the LHDA on the part of Sole, but also causation and quantum of damages. Mr Penzhorn in effect asks this court not only to strike out Sole's plea, but also all the evidence tendered on his behalf at the trial, and to accept that the LHDA had discharged the onus on these claims. The documentation which he alleges that Sole in effect hid from the court a quo, may or may not have a bearing on relevant wrongfulness of his conduct, but is irrelevant to the other issues on which the onus burdened the LHDA. Assuming that a Court of Appeal may impose a greater sanction than a trial court was able to do, nothing on the papers before us persuades me that it could be appropriate when, acceding to the request to strike out his defence could result in Sole being "fined" millions of maloti.
As regards the procedural prayer, namely, reopening the case for further evidence, that too cannot succeed. Assuming any of the documents obtained from Switzerland are relevant to the claims in question, they were not in the possession of Sole. However unco-operative Sole may have been, or worse, he was and is not obliged to discover them. No order compelling him to do so would be competent.
Moreover, and once again on the assumption that they are relevant in respect of the claims in question, the founding affidavit fails to indicate on what basis they could be admitted in evidence. They are not public documents and it is manifest that Sole will not agree to their admission. There is no indication that the witnesses required to prove them, would be available or willing to ensure their admission,still less to be cross examined. This lacuna is fatal to the relief sought. The application by the winner in the court a quo to bolster his case with further evidence on appeal is in
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itself unusual. Moreover, not a single one of the tests laid down in Colman vs Dunbar. 1933 AD 141 has been met to warrant any such order, particularly that requiring the proposed new evidence to be "practically conclusive".
On being confronted with these problems, Mr Penzhorn applied for the matter to be removed from the roll. The purpose of this application was to enable him to supplement the application by way of further evidence, and in so doing, to overcome the obstacles to his obtaining the relief sought.
No basis for such an application has been laid. No reason has been advanced for the failure of the applicant to establish the requisites for a successful application. Neither has the applicant proposed how he intends to bring his case within the ambit of these requirements.
For these reasons the application is dismissed with costs.
L.VAN DEN HEEVER
JUDGE OF APPEAL
I agree
J.H.STEYN
PRESIDENT OF THE COURT OF APPEAL
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M.E. KUMLEBEN
Delivered in open Court this 13th Day of October, 2000.
