CIV/APN/126/86

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

OCRIM
S.P.A. Applicant

V

MARTHA
MARGRIETHA BURGER t/a

ADRIMAR
ENGINEERING 1st Respondent

THE
MINISTRY OF AGRICULTURAL

AND
MARKETING OF THE GOVERNMENT

OF
LESOTHO 2nd Respondent

BINNIES &
PARTNERS - LESOTHO 3rd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 16th day of April, 1986

This is
an application for an order in the following terms :

1. That
   the rules relating to the forms and service be dispensed with in
   terms of Rule 8(22) and that this matter be heard as one
   of urgency.

   
   

2. That
   the Order granted by this Honourable Court in Case No. 121/86 on
   10th April 1986 be end is set aside;

   
   

3. That
   the first Respondent pay the costs of this application;

   
   

4. That
   the Second and Third Respondents pay the costs hereof in the event
   of them opposing the relief sought herein;

   
   

5. Granting
   other or alternative relief.

   
   

Before
the matter was argued in substance counsel for the Respondents raised
a point in limine that the person who deposed to the
founding papers
had no authority to do so. However, without much ado counsel for
Respondents had to conceed that he was on the
wrong. The

2

application
was therefore dismissed with costs to both counsel.

Then
counsel for the Respondents made a second application, from the bar,
for a postponement. In support thereof he filed an affidavit
by one
Reginald Carlisle who described himself as first Respondent's
attorney.

Counsel
for the Respondents wished to obtain the services of counsel who was
in another Court conducting a case. He needed time
to prepare the
necessary papers. There would be no prejudice to the applicant if he
were allowed a short time to enable him to
procure the services of
counsel to argue the application for post­ponement. He further
said that he had no knowledge of the
allegation contained in the
papers before Court. He said that the main application by the
applicant was a substantial one and that
it involved questions of
law.

In answer
Mr. Sulman S.C. said that it had not been stated to the Court why the
order previously granted by this Court could not
be uplifted. As
counsel for the Respondents had stated, the order was a garnishee and
this applied to Government through one of
its Ministries. He
submitted that the Government in Lesotho cannot be garnishee To that
extent the order was defective. (See Lesotho
Glass Works Ltd. v
Mabote Building Construction and Ministry of Works, 1980(1) L.L.R. 89
at 94). That the order granted only the
previous week by this Court
was in the nature of an interdict. It has immediate effect on the
Government and it was understood

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in that
way. He further stated that it was idle to talk about being taken by
surprise by counsel for Respondent. The Respondents
had initiated
these proceedings by not disclosing to the Court why notice was not
served on the Applicant; that arbitration proceedings
were to take
place outside Lesotho. The order had been snatched. Section 6(8) of
the Rules of Court certain conditions must be
complied with. In terms
of section 6(7) it must appear just if notice has not been given to
the other side. This has not been shown.
It must have been
anticipated that the other side would reply to the allegations
levelled against it.

The
Respondent had not disclosed to the Court why notice was not given.
It was not disclosed that a tribunal had to be held outside
the
jurisdiction of this Court. It was for the instructing attorney to
have particularly brought this attention to the Court. No
reason is
given for this non-disclosure.

The
Respondents had been granted an interim order by this Court the
previous week. This was done by an ex carte application. The
terms of
the Rules of this Court were not complied with. This was a serious
matter for not disclosing these matters to the Court.
The other
matters have already been mentioned above. In the words of the
counsel for the applicant in present matter a judgment
had been
snatched.

What,
however, the Court considers to be more serious is to garnishee the
Government through one of its Ministries. This term was
used by
counsel for the Respondents. It was encumbered on the counsel to have

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acquainted
himself with the decisions of this Court. This important fact was not
brought to the attention of the presiding judge
before he granted the
judgment that he did.

In
seeking for an application for an adjournment it was not even
disclosed what the Respondents will say in reply.

In the
circumstances of this application it is equitable and just to make an
order for an upliftment of the order previously obtained
ex parte and
it is so ordered with costs to both counsel. Costs to be borne by the
first Respondent.

BY-
M.P.Mofokeng

JUDGE.

For
Applicant : Adv. Sulman assisted by Adv. Sapire

For
Respondents :