CIV/T/56/86

In the
Matter of :

JOAQUIN
DA SILVA FIGUEIREDO ... Plaintiff

and

VICTORIA
HOTEL.............. Defendant ,

JUDGMENT

Delivered
by the Hon. Mr. Justice B.M. .Molai on the 9th day of March, 1987.

In an
action wherein Plaintiff sued the defendant for damages arising out
of an alleged breach of contract the latter has applied
to this court
for an order directing the former to furnish security for, costs in
the amount of M10.000. The application is opposed
and affidavits have
been duly filed by the parties.

Basically
the application is on the ground that Plaintiff is a citizen of
Portugal i.e. he is not an incola of Lesotho but a peregrinus.
As
Plaintiff does not possess immovable property within the jurisdiction
of the court, defendant would, in the event of success,
be . unable
to recover costs.

Plaintiff
does not dispute that he is a national of Portugal but avers that he
is permanently resident in Lesotho, Consequently
he is not a
peregrinus but on incola who for purposes of Rule 48(3) of the High
Court Rules, cannot be compelled to furnish security

As proof
that he is permanently resident in Lesotho, Plaintiff has attached to
his answering affidavit a testimo­nial, annexure
"NM1",
in which the Managing Director of Senqu Diamond Dealers Import and
Export Company (Pty) Ltd. certifies that he
has been employed by the
company on

2

permanent
bssis for a period of more than two years. He has also handed in an
indefinite permit issued to him under the provisions
of S.6 of the
Aliens Control Act No. 16 of 1966 as well as a copy of a letter
annexure "NM3" addressed to the Director
of Immigration by
the Plaintiff himself advising that his family has already joined him
in Lesotho where he intends to stay. Considering
all these facts, I,
am prepared to accept that Plaintiff is ordinarily resident in
Lesotho

As it was
said in Sephomolo v. Mbatha 1974-1975 LLR

"Where a defendant to a civil action applies for security for
costs on the grounds that the Plaintiff is a peregrinus, the
burden
of proof lies on the defendant to show that the Plaintiff is not
domiciled or ordinarily resident in Lesotho ; ...............

(My underlinings)

I have
underscored the words "or ordinarily resident in Lesotho"
in the",above quotation from the head note in. Sephomolo
v.
Mbatha, sugra, to indicate my view that although not a national of
Lesotho where Plaintiff is, as in the present case,.ordinarily

resident in this .country the provisions of Rule 48(3) of the High
Court rules 1980 cannot properly be invoked against him.

In the
result, I would dismiss this application with costs, but as Cotran
,J.(as he,then was)said in Sephumolo v Mbatha , supra,
this is:

"without prejudice to the defendant's, right to make another
application if it transpires that the Plaintiff's resident permit
has
been cancelled, or. ie about to be cancelled, or his appointment on
permanent terms is terminated, or about to be terminated
or that he
is leaving the country or intends leaving the country without
settling his commitments by way of. costs if awarded against
him,or
otherwise."

B.K.
MOLAI

JUDGE

9th
March, 1987.

For,Plaintiff
: Mr Mphalane

For
Defendant : Mr. Fisher.